Reply Brief — Louisiana, Appellant v. Phillip Callais, et al.

Supreme Court briefOct 3, 2025

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Nos. 24-109, 24-110

In the

Supreme Court of the United States

LOUISIANA,

PHILLIP CALLAIS, et al.,

PRESS ROBINSON, et al.,

PHILLIP CALLAIS, et al.,

Appellant,

Appellees.

Appellants,

Appellees.

On A ppeal from the United States District

Court for the Western District of Louisiana

SUPPLEMENTAL REPLY BRIEF

FOR ROBINSON APPELLANTS

Sarah Brannon

Megan C. Keenan

Adriel I. Cepeda Derieux

A merican Civil Liberties

Union Foundation

915 15th Street NW

Washington, DC 20005

Sophia Lin Lakin

A merican Civil Liberties

Union Foundation

125 Broad Street, 18th Floor

New York, NY 10004

Cecillia D. Wang

A merican Civil Liberties

Union Foundation

425 California Street, Suite 700

San Francisco, CA 94104

Janai Nelson

President & Director Counsel

Samuel Spital

Stuart Naifeh

Counsel of Record

Victoria Wenger

John S. Cusick

Colin Burke

NAACP Legal Defense

& Educational Fund, Inc.

40 Rector Street, 5th Floor

New York, NY 10006

(212) 965-2200

snaifeh@naacpldf.org

Deuel Ross

I. Sara Rohani

Kameron Johnston

NAACP Legal Defense

& Educational Fund, Inc.

700 14th St. NW, Suite 600

Washington, DC 20005

Additional Counsel Listed on Inside Cover

385519

Nora Ahmed

ACLU Foundation

of Louisiana

1340 Poydras Street, Suite 2160

New Orleans, LA 70112

T. Alora Thomas-Lundborg

Daniel Hessel

Election Law Clinic

Harvard Law School

6 Everett Street, Suite 4105

Cambridge, MA 02138

Robert A. Atkins

Yahonnes Cleary

Pietro J. Signoracci

Amitav Chakraborty

Adam P. Savitt

Arielle B. McTootle

Robert Klein

Neil Chitrao

Paul, Weiss, Rifkind,

Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

John Adcock

A dcock Law LLC

3110 Canal Street

New Orleans, LA 70119

Counsel for Appellants

Tracie Washington

Louisiana Justice Institute

3157 Gentilly Boulevard, Suite 132

New Orleans, LA 70122

Counsel for Appellants Dorothy Nairne, Martha Davis,

Clee Earnest Lowe, and Rene Soule

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

ARGUMENT .............................................................. 5

THE FOURTEENTH AND FIFTEENTH

AMENDMENTS GAVE CONGRESS

THE BROAD AUTHORITY TO ENACT

§2 ...................................................................... 5

A. The Nation’s Experience with

Discrimination

Redistricting

Informed Congress’s Enactment of

the Amended §2 ....................................... 5

B. This Court Should Reject the

Invitation To Overturn Nearly 150

Years of Precedent ................................... 7

C. Section 2, as Applied Through

Gingles, Is Well Within Congress’s

Authority To Address and Deter Unconstitutional Racial Discrimination .... 12

II. SECTION 2 AUTHORIZES REMEDIAL

REDISTRICTING

ONLY

WHERE

NECESSARY TO REMEDY SPECIFIC,

PROVEN INSTANCES OF RACIAL

DISCRIMINATION ....................................... 17

A. Section 2 Is Race-Neutral Legislation

Designed To Identify Current

Instances of Discrimination .................. 17

B. States Can Address Racial Vote

Dilution Without Violating the

Constitution ........................................... 19

Section 2 Does Not Require

Racial Classifications ...................... 20

Section 2 Does Not Rely on

Stereotypes ...................................... 21

Section 2 Does Not Mandate

Majority-Minority Districts or

Other Racial Targets ...................... 22

Remedying Racial Discrimination

in Voting Is Not a Zero-Sum

Game ............................................... 26

C. Court-Ordered Plans or StateEnacted Remedial Districts Are

Always Time-Limited, So a Durational

Limit on §2 Is Unwarranted and Not

Constitutionally Required ..................... 27

III. CURRENT CONDITIONS IN LOUISIANA

JUSTIFIED A §2 REMEDY HERE .............. 31

IV. GINGLES ESTABLISHES A WORKABLE STANDARD THAT AVOIDS

UNDUE CONSIDERATION OF RACE ....... 35

A. States have successfully complied

with §2 for decades under this

Court’s existing guidance ...................... 36

B. Alternative Standards Proposed by

Appellees, the Secretary, and the

United States Would Replace Gingles

with the Intent Standard Congress

Rejected .................................................. 39

CONCLUSION ......................................................... 47

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Perez,

585 U.S. 579 (2018) ......................2, 4, 23, 36, 43, 46

Abrams v. Johnson,

521 U.S. 74 (1997) ..................................... 19, 24, 46

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ............................................... 30

Ala. NAACP v. Allen,

No. 21-CV-1531, 2025 WL 2451166

(N.D. Ala. Aug. 22, 2025) ...................................... 37

Ala. State Conf. of NAACP v.

City of Pleasant Grove,

No. 2:18-CV-2056, 2019 WL 5172371

(N.D. Ala. Oct. 11, 2019) ....................................... 25

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

602 U.S. 1 (2024) ............................. 3, 10, 25, 41, 43

Allen v. Milligan,

599 U.S. 1 (2023) ......... 4, 5, 9, 10, 13, 14, 18, 19, 21,

23, 24, 27, 28, 30, 40-43, 46

Ames v. Ohio Dep’t of Youth Servs.,

605 U.S. 303 (2025) ............................................... 33

Baltimore Cnty. Branch of NAACP v.

Baltimore Cnty.,

No. 21-CV-3232, 2022 WL 888419

(D. Md. Mar. 25, 2022) ..................................... 22-23

Bartlett v. Strickland,

556 U.S. 1 (2009) ..................1, 12, 23, 25, 40, 41, 43

iii

Bd. of Educ. v. Dowell,

498 U.S. 237 (1991) ............................................... 30

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

580 U.S. 178 (2017) ................................... 20, 33, 37

Branch v. Smith,

538 U.S. 254 (2003) ............................................... 15

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) ................................................. 4

Brown v. Bd. of Sch. Comm’rs of Mobile Cnty.,

706 F.2d 1103 (11th Cir. 1983),

aff’d, 464 U.S. 1005 (1983) ...................................... 6

Bush v. Vera,

517 U.S. 952 (1996) ..............4, 11, 16, 20, 21, 33, 39

Citizens United v. FEC,

557 U.S. 932 (2009) ................................................. 8

City of Boerne v. Flores,

521 U.S. 507 (1997) ...................... 2, 9, 11-13, 15, 47

City of Rome v. United States,

446 U.S. 156 (1980) ......................................... 11, 14

Cooper v. Harris,

581 U.S. 285 (2017) ..................18, 24, 25, 28, 31, 44

E. Carroll Par. Sch. Bd. v. Marshall,

424 U.S. 636 (1976) ................................................. 7

Easley v. Cromartie,

532 U.S. 234 (2001) ............................................... 42

Ex Parte Virginia,

100 U.S. 339 (1879) ........................................... 9, 15

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ............................................... 17

Flowers v. Mississippi,

588 U.S. 284 (2019) ............................. 21, 41, 42, 46

Foster v. Chatman,

578 U.S. 488 (2016) ............................................... 21

Fusilier v. Landry,

963 F.3d 447 (5th Cir. 2020) ................................. 36

Gamble v. United States,

587 U.S. 678 (2009) .......................................... 10-11

Gaston Cnty. v. United States,

395 U.S. 285 (1969) ............................................... 47

Grutter v. Bollinger,

539 U.S. 306 (2003) ............................................... 29

Hous. Laws.’ Ass’n. v. Atty. Gen. of Tex.,

501 U.S. 419 (1991) ............................................... 41

Hunter v. Underwood,

471 U.S. 222 (1985) ............................................... 44

Johnson v. De Grandy,

512 U.S. 997 (1994) ..................................... 1, 24, 46

Jones v. Jefferson Cnty. Bd. of Educ.,

No. 2:19-CV-1821, 2019 WL 7500528

(N.D. Ala. Dec. 16, 2019) ....................................... 24

Katzenbach v. Morgan,

384 U.S. 641 (1966) ..................................... 9, 10, 13

Lawyer v. DOJ,

521 U.S. 567 (1997) ........................................... 3, 22

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .................. 15, 19, 21, 42, 44-46

Lopez v. Abbott,

339 F. Supp. 3d 589 (S.D. Tex. 2018) ............. 36, 45

Lopez v. Monterey Cnty.,

525 U.S. 266 (1999) ..................................... 9, 13, 14

Louisiana v. United States,

380 U.S. 145 (1965) ................................................. 6

LULAC v. Clements,

999 F.2d 831 (5th Cir. 1993) ................................. 45

Major v. Treen,

574 F. Supp. 325 (E.D. La. 1983)............ 6, 7, 17, 33

Miller v. Johnson,

515 U.S. 900 (1995) ............................................... 38

Milligan v. Allen,

No. 2:21-CV-01530, 2025 WL 2451593

(N.D. Ala. Aug. 7, 2025) .......................................... 3

Miss. State Conf. of the NAACP v.

State Bd. of Election Comm’rs,

782 F. Supp. 3d 336 (S.D. Miss. 2025) ................. 22

Mo. State Conf. of NAACP v.

Ferguson-Florissant Sch. Dist.,

219 F. Supp. 3d 949 (E.D. Mo. 2016) .................... 25

Montejo v. Louisiana,

556 U.S. 778 (2009) ............................................... 10

Montes v. City of Yakima,

No. 12-CV-3108, 2015 WL 11120964

(E.D. Wash. Feb. 17, 2015) ................................... 24

Nevada Dep’t of Hum. Res. v. Hibbs,

538 U.S. 721 (2003) ............................................... 13

Nipper v. Smith,

39 F.3d 1494 (11th Cir. 1994) ............................... 45

Oregon v. Mitchell,

400 U.S. 112 (1970) ............................................... 13

Perry v. City of Opelousas,

515 F.2d 639 (5th Cir. 1975) ................................... 6

Pierce v. N.C. State Bd. of Elections,

97 F.4th 194 (4th Cir. 2024) ............................ 37-38

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................. 10

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022) ..... 4, 5, 27, 28,

31-35, 38, 47

Rogers v. Lodge,

458 U.S. 613 (1982) ............................................... 15

Sanders v. United States,

No. 2023-1188, 2023 WL 4745352

(Fed. Cir. July 25, 2023) ................................. 38, 45

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ................................................. 15

Shaw v. Reno,

509 U.S. 630 (1993) ....................................... 2, 5, 38

Sheet Metal Workers v. EEOC,

478 U.S. 421 (1986) ............................................... 30

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) ......................2, 8, 12, 16, 17, 33

Singleton v. Allen,

782 F. Supp. 3d 1092 (N.D. Ala. 2025) ....... 6, 19, 42

Singleton v. Allen,

No. 21-CV-1291, 2023 WL 6567895

(N.D. Ala. Oct. 5, 2023) ................................... 24, 25

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ........................................... 9, 10

vii

Students for Fair Admissions v. Harvard

College (“SFFA”),

600 U.S. 181 (2023) ......................1, 3, 19, 28, 29, 30

Tennessee v. Lane,

541 U.S. 509 (2004) ......................................... 12, 13

Tex. Dep’t of Hous. & Cmty. Affs. v.

Inclusive Cmtys. Project, Inc.,

576 U.S. 519 (2015) ................................................. 3

Thornburg v. Gingles,

478 U.S. 30 (1986) ................ 9, 10, 12, 14-18, 20-23,

25, 31, 33, 35-40, 42-47

Turner v. McKeithen,

490 F.2d 191 (5th Cir. 1973) ................................... 6

U.S. v. Paradise,

480 U.S. 149 (1987) ............................................... 30

United States v. City of Calera,

No. CV-08-BE-1982-S, 2009 WL 10730411

(N.D. Ala. Oct. 23, 2009) ....................................... 25

United States v. City of Eastpointe,

No. 417-CV-10079, 2019 WL 2647355

(E.D. Mich. June 26, 2019) ................................... 25

United States v. City of W. Monroe,

No. 3:21-CV-988, 2021 WL 12363712

(W.D. La. Apr. 15, 2021) ....................................... 11

United States v. Euclid City Sch. Bd.,

632 F. Supp. 2d 740 (N.D. Ohio 2009) .................. 25

United States v. Vill. of Port Chester,

704 F. Supp. 2d 411 (S.D.N.Y. 2010) .................... 25

Voinovich v. Quilter,

507 U.S. 146 (1993) ................................... 19, 24, 44

viii

Walen v. Burgum,

700 F. Supp. 3d 759 (D.N.D. 2023),

aff’d in part, appeal dismissed in part,

145 S. Ct. 1041 (2025) ........................................... 37

Wallace v. House,

515 F.2d 619 (5th Cir. 1975) ................................... 6

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

No. 22-CV-62, 2025 WL 2406437

(N.D. Miss. Aug. 19, 2025) .................................... 37

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

595 U.S. 398, 405 (2022) ................................. 23, 36

Wyche v. Madison Par. Police Jury,

635 F.2d 1151, 1160 (5th Cir. 1981) ....................... 6

Zimmer v. McKeithen,

485 F.2d 1297 (5th Cir. 1973) .............................. 6-7

Constitutional Provisions

U.S. Const. amend. XIV ........................... 5, 10, 12, 15

U.S. Const. amend. XV........................... 4, 5, 9, 12, 15

U.S. Const. amend. XV §1 ........................................ 20

Statutes, Rules and Regulations

52 U.S.C. §10301(b) .................................................. 22

Voting Rights Act, §2 ............... 1-5, 7-32, 34-40, 42-47

Other Authorities

Foner, Reconstruction: America’s Unfinished

Revolution, 1863-1877, at 590-592 (1988) .............. 6

Engstrom et al., “Louisiana,” Quiet Revolution in

the South 120 (Davidson & Grofman eds.,

1994) ........................................................................ 7

Fares Sabawi, A Recent History of Texas’ Most

Competitive Congressional District: CD-23,

KSAT (Oct. 2, 2020), https://www.ksat.com/

vote-2020/2020/10/02/a-recent-history-oftexas-most-competive-congressional-districtcd-23/...................................................................... 45

INTRODUCTION

Although we are making progress towards the

goal of an America where race is no longer relevant to

opportunity, “racial discrimination and racially polarized voting are not ancient history.” Bartlett v. Strickland, 556 U.S. 1, 25 (2009) (plurality). Indeed, “racial

discrimination still occurs and the effects of past racial discrimination still persist.” Students for Fair Admissions v. Harvard College (“SFFA”), 600 U.S. 181,

317 (2023) (Kavanaugh, J., concurring). Today, there

are places in Louisiana and elsewhere where race substantially factors into which candidate certain voters

support, which constituents elected officials are responsive to, and what campaign messages candidates

produce. Even now, it appears that Louisiana is planning to roll back Black representation in its congressional delegation. See La. Legis. Black Caucus Br.3,

11.

Section 2 of the Voting Rights Act (“VRA”) did

not create this problem; to the contrary, Congress enacted §2 “to hasten the waning of racism in American

politics.” Johnson v. De Grandy, 512 U.S. 997, 1020

(1994). As carefully calibrated by this Court, §2 has

done much to address the “demonstrated ingenuity of

state and local governments in hobbling minority voting power” through gerrymanders and at-large elections. Id. at 1018. The other parties attempt to strip

§2 of its foundational context. But §2 is Congress’s

well-considered remedy to over a century of brutal racial discrimination. And this Court has lauded it as an

exemplar of Congress’s enforcement powers.

This Court and Congress have guaranteed all

Americans that “[f]ederal and state civil rights laws

[will] serve to deter and provide remedies for current

acts of racial discrimination.” SFFA, 600 U.S. at 317

(Kavanaugh, J., concurring). Section 2 is such a law.

It is a “permanent, nationwide ban on racial discrimination in voting.” Shelby Cnty. v. Holder (“Shelby”),

570 U.S. 529, 557 (2013). It deters all manner of discrimination in voting, and it provides a remedy only

where plaintiffs can prove current discrimination

based on current conditions. See, e.g., Abbott v. Perez,

585 U.S. 579, 619 (2018). Congress acted at the height

of its enforcement authority under the Reconstruction

Amendments when it enacted §2 to address racial discrimination in voting. E.g., City of Boerne v. Flores,

521 U.S. 507, 530 (1997). Unsurprisingly, the other

parties cite no authority for their claim that Congress

is required to regularly review federal civil rights legislation, because such a requirement would contravene the Reconstruction Amendments’ aims of entrusting Congress with expansive enforcement powers. Congress does not need to periodically reconsider

whether laws that bar segregation, literacy tests, and

discrimination in private contracts are still necessary.

And this Court has never imposed an atextual sunset

date on a validly enacted, nationwide civil rights law.

Cf. Shelby, 570 U.S. at 544, 557 (emphasizing that

Congress devised a time-limited preclearance formula

due to §5’s unique “equal sovereignty” concerns and

that the Court’s decision invaliding that formula in

“no way affects ... § 2,” which is “nationwide and permanent”). Nor has this Court ever held that state lawmakers cannot be aware of race in enacting remedies

for proven racial discrimination. Contra Shaw v. Reno

(“Shaw I”), 509 U.S. 630, 646 (1993).

Indeed, contrary to what the other parties say,

§2’s genius is its flexibility—remedies do not require

racial targets or classifications, much less lead to unconstitutional racial gerrymandering. Rather, state

actors have significant “leeway” to provide the required increases in minority electoral opportunities by

creating §2-compliant districts drawn using nonracial

traditional redistricting criteria or based on electoral

performance. See, e.g., Lawyer v. DOJ, 521 U.S. 567,

575 (1997); Milligan v. Allen, No. 2:21-CV-01530,

2025 WL 2451593, at *4 (N.D. Ala. Aug. 7, 2025) (noting that a §2 remedy was “drawn race-blind” based on

communities of interest and socioeconomic data); La.

Mathematics & Computer-Science Professors Amicus

Br.7-24 (“Professors Amicus”) (offering congressional

plan with two opportunity districts drawn based on

electoral competitiveness, neither majority Black); cf.

also Alexander v. S.C. State Conf. of the NAACP, 602

U.S. 1, 22 (2024) (holding that strict scrutiny was not

triggered where a map-maker relied on election data,

and reviewed racial data only afterward “solely for a

lawful purpose” of ensuring VRA compliance).

While such alternative §2 remedies may involve an awareness of race, individuals are assigned

to districts based solely on nonracial criteria, not racial targets. This approach mirrors other “race-neutral” remedies that neither subject individuals to racebased disparate treatment, nor trigger strict scrutiny.

See, e.g., SFFA, 600 U.S. at 299-300 (Gorsuch, J., with

Thomas, J., concurring) (explaining that universities

may use “race-neutral” admissions criteria, like socioeconomic status that correlate with race, to admit racially diverse classes); id. at 317 (Kavanaugh, J., concurring) (same). In attempting to remedy discrimination with “race-neutral tools,” the “mere awareness of

race … does not doom that endeavor at the outset.”

Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys.

Project, Inc., 576 U.S. 519, 545 (2015). Given this flex-

ibility, rarely does §2 require the predominant consideration of race in redistricting. Cf. Abbott, 585 U.S. at

616. And when it does, the state must meet strict scrutiny. See Bush v. Vera, 517 U.S. 952, 994-995 (1996)

(O'Connor, J., concurring).

Critically, §2 “makes no assumptions one way

or the other about the role of racial considerations in

a particular community.” S. Rep. No. 97-417 (“Senate

Report”) 34. If plaintiffs assert that the political process is not equally open, §2 requires them to prove it.

In contrast, the other parties’ all-out assault on

§2 rests on various unproven and baseless assumptions. They ask this Court to run roughshod over the

basic principles of our legal system: respect for stare

decisis and precedent; Congress’s authority under the

Reconstruction Amendments; and even the fundamental requirement of supporting factual assertions

with record evidence. Without evidence, they ask this

Court to presume that race no longer affects voters,

bucking this Court’s acknowledgment that “no one

suggests that discrimination in voting has been extirpated or that the threat has been eliminated.” Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 678

(2021). They assert that §2 (rather than the discrimination it is designed to root out) is the reason race still

affects our political system, omitting the century before §2’s enactment in which the Fifteenth Amendment was “little more than a parchment promise.” Allen v. Milligan, 599 U.S. 1, 10 (2023). Their arguments

both ignore the Robinson court’s well-supported findings of Louisiana’s present-day discrimination and

downplay the “exacting requirements” this Court has

precisely crafted to ensure that §2 “limit[s] judicial in-

tervention” to only those places where “intensive racial politics” are already denying equal electoral opportunities to minority voters. Id. at 30 (cleaned up).

A challenge to §2’s constitutionality must be

grounded in law and fact, not breezy claims that a critical landmark statute has “lost its luster.” Appellees’

Supplemental Brief [hereinafter “App. Supp.” or “Appellees (at)”] 3. This Court should hold to the specific

questions presented about Louisiana’s districts and

again decline the invitation to “remake its Section 2

jurisprudence anew.” Milligan, 599 U.S. at 23. The

only question rightly before the Court is whether Louisiana acted within constitutional bounds to create a

remedial majority-minority district based on the Robinson §2 violation. Precedent compels an affirmative

answer.

ARGUMENT

THE FOURTEENTH AND FIFTEENTH

AMENDMENTS GAVE CONGRESS THE

BROAD AUTHORITY TO ENACT §2.

The Nation’s Experience with Discrimination in Redistricting Informed Congress’s

Enactment of the Amended §2.

The history of constitutional violations supporting §2’s enactment is massive and well-documented.

In the century between Reconstruction’s close in the

1870s and the VRA’s enactment in 1965, racial discrimination in voting was systematic and pervasive.

As “Redeemer” Democrats regained power in the

1870s, they deployed “the racial gerrymander—the

deliberate and arbitrary distortion of district boundaries for racial purposes.” Shaw I, 509 U.S. at 640

(cleaned up). Mississippi and Alabama “concentrated

the bulk of the Black population” into “shoestring”

congressional districts, eliminating majority-Black

districts in states with Black majorities. Id. (citation

omitted); Singleton v. Allen, 782 F. Supp. 3d 1092,

1326 (N.D. Ala. 2025). Local governments used atlarge elections for the same purpose. See, e.g., Brown

v. Bd. of Sch. Comm’rs of Mobile Cnty., 706 F.2d 1103,

1106-1107 (11th Cir. 1983), aff’d, 464 U.S. 1005

(1983). And when gerrymanders alone could not extinguish Black political power, States layered on literacy

tests and poll taxes to expel Black voters from the rolls

altogether. Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877, at 590-592 (1988).

Louisiana followed the same pattern. In the

1870s, it prevented Black people from holding office.

Major v. Treen, 574 F. Supp. 325, 339-340 (E.D. La.

1983). Then, until the 1960s, it enacted literacy tests

to “preserve white supremacy.” Louisiana v. United

States, 380 U.S. 145, 147-150 (1965).

Our nation only began to emerge from this period of near-absolute racial exclusion after the VRA’s

enactment in 1965. For example, no Black person sat

in Louisiana’s Legislature from the 1880s until 1967.

After the VRA led to a dramatic rise in Black voter

registration, states began to employ “a broad array of

dilution schemes ... to cancel the impact [of] the new

Black vote.” Senate Report 6. Indeed, just before the

1982 amendments, courts identified numerous constitutional violations in Louisiana. See, e.g., Wyche v.

Madison Par. Police Jury, 635 F.2d 1151, 1160 (5th

Cir. 1981) Perry v. City of Opelousas, 515 F.2d 639 (5th

Cir. 1975); Wallace v. House, 515 F.2d 619 (5th Cir.

1975); Turner v. McKeithen, 490 F.2d 191, 195 (5th

Cir. 1973); Zimmer v. McKeithen, 485 F.2d 1297 (5th

Cir. 1973) (en banc), aff'd sub nom., E. Carroll Par.

Sch. Bd. v. Marshall, 424 U.S. 636 (1976). Black voters only gained the opportunity to elect their preferred

candidate to Congress after litigation under amended

§2 remedied Louisiana’s perennial “racially selective”

“slic[ing]” of New Orleans’s Black population. Major,

574 F. Supp. at 353-355 & n.39. Even then, White bloc

voting in primaries prevented Black voters from electing their preferred candidate to Congress until 1990—

over a century after Reconstruction. Engstrom et al.,

“Louisiana,” Quiet Revolution in the South 120 (Davidson & Grofman eds., 1994).

In amending §2 in 1982, Congress considered

this history and more. Senate Report 17-43. It also expressly identified cases that, despite strong evidence

of intentional discrimination, failed under this Court’s

Bolden decision, which had read §2 as requiring plaintiffs to prove discriminatory intent. Id. at 38-40 &

nn.143-147. Moreover, Congress examined a century

of pre-Bolden experience with state and local governments’ ingenuity in contriving discriminatory voting

systems, and a decade of effective enforcement under

the White test. Id. at 17-24. All this gave Congress reason to determine §2 was necessary to remedy or deter

unconstitutional discrimination.

This Court Should Reject the Invitation

To Overturn Nearly 150 Years of Precedent.

Despite this history, Louisiana, Louisiana Supplemental Brief [hereinafter “La. Supp.” or “Louisiana

(at)”] 42-43, and Appellees (at 11-16) newly assert that

§2 was unconstitutional even in 1982. In so doing, they

seek to expand this Court’s supplemental question

from addressing a single remedial district’s constitutionality to a full-scale attack on Congress’s authority

to enact §2 or any other prophylactic civil rights statute. This sweeping facial challenge to §2 is both unmoored from any legal precedent and not an argument

any party presented below or before supplemental

briefing here. It would be unprecedented to undertake

such a radical step on expedited supplemental briefing and re-argument, with no relevant factual record

below, and no indication that precedents spanning

150 years might be on the chopping block. When this

Court has contemplated reconsidering established

precedent on re-argument, it has said so. Cf., e.g., Citizens United v. FEC, 557 U.S. 932 (2009) (Mem.).

The contrast with Appellees’ and Louisiana’s

approach here and the last time the Court considered

a challenge to a major provision of the VRA could not

be starker. In Shelby, the challengers directly raised

their challenge in the lower courts—allowing for full

consideration and analysis of the relevant facts—and

the Court only reached the question four years after

an earlier decision that “took care to avoid ruling on

the constitutionality of the [VRA],” and resolved the

case on narrower grounds to give Congress an opportunity to update the coverage formula. 570 U.S. at

556-557.

This Court should reject this extraordinary reframing of its question presented and limit its decision

to addressing the constitutionality of SB8.

But even if the Court does reach §2’s constitutionality, Louisiana’s and Appellees’ arguments fail

on the merits. By asking the Court to declare §2 unconstitutional, Louisiana and Appellees seek to upend

nearly 150 years of precedent affirming Congress’s

broad power under the Reconstruction Amendments.

To start, they effectively ask this Court to overrule Ex

Parte Virginia, 100 U.S. 339 (1879)—a bedrock Reconstruction-era decision. There, the Court made clear

that Congress’s enforcement power under these

Amendments is “appropriate” and constitutional so

long as it “tends to enforce submission to the prohibitions [that the Amendments] contain, and to secure to

all persons the enjoyment of perfect equality of civil

rights and the equal protection of the laws against

State denial or invasion, if not prohibited.” Id. at 345346.

Louisiana (at 5), meanwhile, openly asks the

Court to overrule Gingles, which has governed §2’s operation for forty years and which the Court reaffirmed

just two years ago in Milligan. Appellees (at 13-16) go

further still, asserting that §2’s results test has never

been constitutional. Yet from Katzenbach in 1966 to

Milligan in 2023, this Court has consistently upheld

the VRA’s permanent, prophylactic measures as a rational means of enforcing the Fifteenth Amendment’s

ban on racial discrimination in voting. See Milligan,

599 U.S. at 41; Katzenbach v. Morgan, 384 U.S. 641,

651-656 (1966); see also South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966).

Appellees (at 3) similarly suggest that the

Court abrogate portions of Boerne sub silentio. But

Boerne itself recognized that Congress’s enforcement

power is at its zenith when addressing racial discrimination in voting. 521 U.S. at 518; accord Lopez v.

Monterey Cnty., 525 U.S. 266, 283 (1999) (explaining

that the VRA is consistent with Boerne and “may

guard against both discriminatory animus and the potentially harmful effect of neutral laws”) (citation

omitted).

Accepting the contention that §2 exceeds Congress’s enforcement authority would not only overturn

all these precedents; it would also cast doubt on the

constitutionality of the VRA’s other prophylactic

measures—for example, bans on literacy tests, poll

taxes, and good-moral-character tests. Cf. Katzenbach, 383 U.S. at 334; Morgan, 384 U.S. at 653-656.

But, as Appellees concede (at 11), Milligan rejected

the argument that §2 exceeds Congress’s constitutional authority. Milligan also forecloses the argument that §2 goes beyond the constitutional remedial

consideration of race. 599 U.S. at 41-42.

Louisiana (at 45) goes further, insisting that

the Fourteenth Amendment prohibits any consideration of race in redistricting, a position that would overturn statutory and constitutional vote-dilution precedents as well as the racial predominance standard

this Court has consistently applied from Shaw to Alexander last year.

This Court has set an appropriately high bar

for overturning precedent. In the constitutional context, it considers factors such as the rule’s workability,

Montejo v. Louisiana, 556 U.S. 778 (2009), and

whether discarding precedent will “unduly upset reliance interests.” Ramos v. Louisiana, 590 U.S. 83, 129

(2020). The bar is higher still for statutory precedent

like Gingles. See Milligan, 599 U.S. at 39; id. at 42

(Kavanaugh, J., concurring). Yet Louisiana and Appellees urge the Court to dispense with 50 years of settled law—precedent that has guided states remedying

vote dilution while avoiding race-predominant districting as an end in itself. Louisiana and Appellees

fail to even acknowledge these standards, much less

attempt to meet them. See Gamble v. United States,

587 U.S. 678, 691 (2009) (declining to overrule “numerous ‘major decisions of this Court’ spanning 170

years” based on “middling” historical revisionism).

These considerations are especially important

here. Congress relies on the stability of precedent in

crafting enforcement legislation, see Boerne, 521 U.S.

at 536, and when it amended §2 in 1982, this Court

had unequivocally held that Congress has the constitutional authority to prohibit results-based voting discrimination. See City of Rome v. United States, 446

U.S. 156, 177-178 (1980). Moreover, the Court’s “legitimacy requires, above all, that [it] adhere to stare decisis, especially in such sensitive political contexts as

the present, where partisan controversy abounds.”

Vera, 517 U.S. at 985 (plurality).

The upshot of Louisiana’s burn-it-all-down approach is that it wants relief from any congressional

or judicial scrutiny of its voting laws. Let there be no

mistake: That was the situation that prevailed in Louisiana and nationwide for the 100 years before the

VRA. It was a time when Black voters and other voters of color were systematically excluded from the political process, when states freely and regularly drew

districts that made it impossible for Black citizens to

elect candidates of their choice, and when no Black

person sat in Louisiana’s legislature or congressional

delegation. It was an era “blind” to race only in the

sense that obvious, widespread discrimination went

unaddressed by Congress and courts. We cannot afford a return to such a blinkered past.

Section 2 has brought us a great distance from

that era, but its work is by no means done, nor are

such threats irreversibly in the past. See, e.g., United

States v. City of W. Monroe, No. 3:21-CV-988, 2021 WL

12363712, at *1 (W.D. La. Apr. 15, 2021) (noting that,

despite a 34% Black population, no Black candidate

had ever been elected to city government). “Much remains to be done to ensure that citizens of all races

have equal opportunity to share and participate in our

democratic processes and traditions; and § 2 must be

interpreted to ensure that continued progress.” Bartlett, 556 U.S. at 25 (plurality). This Court should decline Louisiana’s invitation to rewrite its well-hewn

redistricting precedent wholesale.

Section 2, as Applied Through Gingles, Is

Well Within Congress’s Authority To Address and Deter Unconstitutional Racial

Discrimination.

The Fifteenth Amendment expressly gives Congress the authority to enact laws addressing racial

discrimination in voting. See Tennessee v. Lane, 541

U.S. 509, 555 (2004) (Scalia, J., dissenting). Laws enacted under it are therefore constitutional so long as

the statute is a “rational” method of enforcing the

Constitution’s ban on racial discrimination in voting.

Shelby, 570 U.S. at 550. Nonetheless, Appellees (at

12) and Louisiana (at 42) wrongly insist that §2 must

satisfy Boerne’s “congruence and proportionality”

standard, 521 U.S. at 520—a standard applicable only

to measures enacted under the Fourteenth Amendment, involving rights other than the right to vote and

forms of discrimination subject to lesser scrutiny than

racial discrimination.

Even if Boerne applied, §2 is the very model of

congruent-and-proportional enforcement legislation.

Congress “is not confined to the enactment of legislation” enforcing the Reconstruction Amendments “that

merely parrots the precise wording of the” constitu-

tional text. Lane, 541 U.S. at 533 n.24 (citation omitted). The congruence-and-proportionality test preserves Congress’s leeway to enact “legislation which

deters or remedies constitutional violations ... even if

in the process it prohibits conduct which is not itself

unconstitutional.” Lopez, 525 U.S. at 282. Indeed,

Boerne repeatedly pointed to the VRA, with its

prophylactic remedies that bar conduct based on discriminatory effects, as a paradigmatic enforcement

statute. 521 U.S. at 517-518.

Hoping to bolster their Boerne argument, Appellees (at 17-18) also try to distinguish Lane and Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721 (2003),

arguing those laws involved more evidence of recent

discrimination and authorized more limited remedies.

This effort fails. In Hibbs, the Court upheld a nationwide and permanent family-care leave provision even

though the law went well-beyond remedying only specific instances of sex discrimination, and it did so

“based primarily on evidence of disparate provision of

parenting leave, little of which concerned unconstitutional state conduct.” Lane, 541 U.S. at 528 (describing Hibbs). And in Lane, the Court upheld Title II of

the Americans with Disabilities Act as applied to

court access, even though the law broadly requires accommodations nationwide, despite congressional testimony primarily focusing on the physical inaccessibility of some local courthouses. See id. at 527. Likewise, in Oregon v. Mitchell, this Court unanimously

upheld Congress’s nationwide literacy tests ban, 400

U.S. 112, 118 (1970), despite Congress’s recognition

that not all states’ tests were unconstitutional, see

Boerne, 521 U.S. at 518; Morgan, 384 U.S. at 653-656.

In amending §2, Congress enacted a “hardfought compromise,” Milligan, 599 U.S. at 25, to deter

and remedy unconstitutional discrimination without

forcing proportionality or injecting race into every redistricting decision. See Robinson Appellants’ Supplemental Brief [hereinafter “Robinson Supp.”] 10-16.

Congress determined that requiring plaintiffs to prove

discriminatory intent would allow too much unconstitutional conduct to go undetected and unremedied.

Gingles, 478 U.S. at 30-31. To address this problem,

Congress enacted a calibrated and exacting results

test, which this Court has further refined. That test is

not a pure disparate impact standard but instead considers all the relevant circumstances to allow courts

to determine whether current conditions reveal the

kind of persistent racial politics that require remedial

action. See Milligan, 599 U.S. at 27-28; see also Robinson Supp.16-24.

The other facial attacks on §2 all fail. The

United States misstates the law by suggesting, United

States Amicus Br. [hereinafter “United States (at)”]

10-11, that Congress can address results-based discrimination only when accompanied by proof of intentional discrimination in the specific case before the

Court. Instead, precedent recognizes that Congress

may legislate to address results-based discrimination

in voting, even if the evidence supporting a resultsbased violation does not meet the legal standard for

proving intentional discrimination in a specific case.

See, e.g., Milligan, 599 U.S. at 40-41, Lopez, 525 U.S.

at 282-283; Rome, 446 U.S. at 179. Nonetheless, while

the results test does not require findings of discriminatory purpose, the totality-of-circumstances standard includes a number of factors probative of such purpose and allows §2 to deter state actions that often

“bear[] the mark of intentional discrimination.”

League of United Latin Am. Citizens v. Perry (“LULAC”), 548 U.S. 399, 440 (2006); see Robinson

Supp.21-24.

Appellees’ (at 11-13) federalism arguments are

also misplaced. The Reconstruction Amendments

“fundamentally altered the balance of state and federal power.” Seminole Tribe of Fla. v. Florida, 517

U.S. 44, 59 (1996); accord Ex Parte Virginia, 100 U.S.

at 345-346. Boerne properly recognized that

“measures protecting voting rights are within Congress’ power to enforce the Fourteenth and Fifteenth

Amendments, despite the burdens those measures

placed on the States.” 521 U.S. at 518. Appellees’ (at

12) complaint that §2 “impinges on States’ sovereign

power to regulate their elections and draw congressional districts” fails to grapple with this incontrovertible constitutional truth and is, thus, wholly misplaced.

Indeed, §2 is a narrower and less intrusive statute than Congress had the authority to enact under

its enforcement powers. For example, Congress could

have required that jurisdictions nationwide “abandon” all “at-large voting schemes,” Rogers v. Lodge,

458 U.S. 613, 632 (1982) (Stevens, J., dissenting). Or

Congress could have exercised its Elections Clause authority to require cumulative voting for congressional

districts. Cf. Branch v. Smith, 538 U.S. 254, 310

(2003) (O’Connor, J., concurring). Either option would

have been race-neutral and ameliorative but would

have outlawed a substantially greater swath of constitutional state laws than §2. As enacted, §2 “limits” intrusions on the states by only requiring a remedy

where it is proven that race-based politics are already

at play. Gingles, 478 U.S. at 46.

Appellees (at 15) then liken §2 to §5’s coverage

formula for preclearance, contending that §2 likewise

requires “a prior detailed congressional finding of discrimination in the areas to which it applies,” to prevent it from being “overinclusive.” But this Court rejected that comparison in Shelby, holding that its ruling on §4’s coverage formula “in no way affect[ed] the

permanent, nationwide ban on racial discrimination

in voting found in § 2.” 570 U.S. at 557 (emphasis

added).

The analogy ignores “the fundamental difference” between the two statutory provisions. Senate

Report 42; accord Shelby, 570 U.S. at 542-545. Preclearance imposed “exceptional conditions” because it

inverted usual burdens of proof and implicated state

sovereignty by singling out specific states and counties. Id.

Section 2, by contrast, simply directs “the use

of a particular legal standard to prove discrimination

in court.” Senate Report 42. It does not bar states from

immediately implementing maps. In “appropriate

cases,” §2 authorizes courts to enjoin such laws provided plaintiffs can show that entitlement to relief.

Shelby, 570 U.S. at 537; see also id. at 544. Louisiana’s

(at 13) and Appellees’ (at 13) effort to bring §2 within

Shelby’s ambit by labeling it a “de facto postclearance

regime” is empty rhetoric. If a §2 challenge to a state

map is a “postclearance” suit, then so is Appellees’

present challenge to SB8.

Unlike §5, nothing about §2 litigation is extraordinary. Section 2 doesn’t shift the burden to

states to justify their laws; it instead requires plaintiffs to prove their case subject to the demanding Gingles standard. And because it applies nationwide, §2

does not target specific states for special treatment

while exempting others. Shelby, 570 U.S. at 557. Indeed, §2 does not impose a remedy anywhere without

proof of current racial discrimination. There is no such

thing as a per se §2 violation; “Plaintiffs must demonstrate that, under the totality of the circumstances,

the devices result in unequal access to the electoral

process.” Gingles, 478 U.S. at 46; see Major, 574 F.

Supp. at 347-348 (describing Congress’s debates on

this issue).

Appellees have made no record of §2 being routinely applied to penalize states for lawful, non-discriminatory actions. Section 2 applies only where and

when voting discrimination has been proved. Gingles,

478 U.S. at 46; Senate Report 33-34. It is a generally

applicable anti-discrimination law, closely tied to the

constitutional prohibition it enforces, and therefore

constitutional. See Fitzpatrick v. Bitzer, 427 U.S. 445,

456 (1976); Shelby, 570 U.S. at 557.

II.

SECTION 2 AUTHORIZES REMEDIAL

REDISTRICTING ONLY WHERE NECESSARY TO REMEDY SPECIFIC, PROVEN

INSTANCES OF RACIAL DISCRIMINATION.

Section 2 Is Race-Neutral Legislation Designed To Identify Current Instances of

Discrimination.

In urging the Court to declare §2 unconstitutional, Louisiana and Appellees fundamentally mischaracterize the statute. Louisiana (at 18-32) devotes

15 pages to attacking the role of race in the §2 analysis

without acknowledging the obvious: §2’s purpose is to

prohibit racial discrimination, not create it. Section 2

neither classifies citizens by race, imposes racial quotas, nor mandates race-predominant remedies. Its

text simply prohibits racially discriminatory voting

practices.

Ignoring that Congress enacted §2 to remedy

more than a century of entrenched discrimination,

Louisiana (at 18-24) recasts it as a “racial classification” built on “racial stereotypes” and “racial targets”

in districting. Appellees (at 21-27) pile on, claiming

that §2 mandates, rather than prohibits, racial discrimination. This turns the statute on its head, since

its plain language is meant to ensure equal opportunities and prevent voting discrimination.

The other parties’ mischaracterizations of §2

bear no resemblance to how the “flexible, fact-intensive test” under Gingles works to “limit[] the circumstances under which § 2 violations may be proved in

three ways.” 478 U.S. at 46; accord Milligan, 599 U.S.

at 29-30. First, “the results test does not assume the

existence of racial bloc voting; plaintiffs must prove

it.” Gingles, 478 U.S. at 46. Second, no scheme per se

violates §2. Id. Third, “Plaintiffs must demonstrate

that ... the devices result in unequal access to the electoral process.” Id.

Gingles’s and Shaw’s rigorous constraints limit

§2’s application to cases where racial discrimination

already distorts the political process to exclude Black

voters from equal participation. See Robinson

Supp.13-16; see also Milligan, 599 U.S. at 28; Gingles,

478 U.S. at 46. Only where there is significant evidence of a likely §2 violation, Cooper, 581 U.S. at 293,

does §2 supply a compelling state interest in “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.”

SFFA, 600 U.S. at 207. Indeed, establishing §2 liability often requires evidence indicative of intentional

discrimination. See Robinson Supp.21-24. Remedying

such statutory violations provides a quintessential

compelling interest that justifies the narrowly tailored remedial use of race. See Robinson Supp.12.

States Can Address Racial Vote Dilution

Without Violating the Constitution.

Section 2, as this Court has repeatedly explained, does not require “strict racial percentages,”

Abrams v. Johnson, 521 U.S. 74, 93 (1997); “says nothing about majority minority districts,” Voinovich v.

Quilter, 507 U.S. 146, 155 (1993); and never mandates

“[f]orcing proportionate representation.” Milligan,

599 U.S. at 28; see also Robinson Supp. 24-25. Rather,

where §2 liability attaches, Shaw guards against the

impermissible use of race in developing a remedy. See

Milligan, 599 U.S. at 25-28. And, by ensuring that illustrative districts are reasonably configured based

on traditional districting principles, this Court’s precedent carefully guards against the excessive use of

race in determining §2 liability. Milligan, 599 U.S. at

21; see id. at 43 & n.2 (Kavanaugh, J., concurring).

A §2 remedy’s touchstone is equality of opportunity to participate in the electoral process—not a

guaranteed share of representation. LULAC, 548 U.S.

at 428. To avoid strict scrutiny, §2 remedies can, in

some cases, be drawn without reference to racial data.

See, e.g., Singleton, 782 F. Supp. 3d at 1358. Under

Shaw, state mapmaking triggers strict scrutiny only

where a district is drawn predominantly based on

race. A general awareness of the racial makeup of a

region or community is insufficient to raise constitutional concerns. See, e.g., Milligan, 599 U.S. at 24-25.

In the rare instances where racially predominant

map-drawing is necessary to fully remedy or prevent

a §2 violation, state cartographers are permitted to

use race in a narrowly tailored way. See Bethune-Hill

v. Va. State Bd. of Elections, 580 U.S. 178, 194-195

(2017); accord Vera, 517 U.S. at 994-995 (O’Connor,

J., concurring).

1. Section 2 Does Not Require Racial

Classifications.

Louisiana and Appellees assert that merely by

prohibiting racial discrimination, §2 in effect creates

an unconstitutional racial classification. But §2 neither treats individuals differently based on race nor

requires states or courts to do so. Rather, like any

anti-discrimination statute, it protects voters from racial discrimination regardless of their race. Of course,

assessing §2 liability requires some consideration of

race to determine whether electoral opportunities

have been denied or abridged on account of race. Making that determination is not making a racial classification; rather, it is analyzing whether the challenged

law or practice is itself operating to make racial distinctions in providing electoral opportunities.

Louisiana (at 20-21) argues that merely

“run[ning] the §2 analysis” under Gingles forces

courts and states to engage in racial classifications.

By its logic, even asking whether a redistricting plan

“den[ies] or abridg[es] the right ... to vote on account

of race,” is itself unconstitutional. U.S. Const. amend.

XV §1. That argument defies §2’s text, the Reconstruction Amendments, and common sense. Courts routinely account for race to detect racial discrimination.

For example, jury-discrimination claims necessarily

examine the race of prospective jurors or a jury pool’s

racial composition. See, e.g., Flowers v. Mississippi,

588 U.S. 284, 299 (2019); Foster v. Chatman, 578 U.S.

488, 513-514 (2016). So, too, do §2 claims require considering voters’ race to determine whether a state has

diluted the votes of members of a racial group. See,

e.g., Milligan, 599 U.S. at 21. Indeed, a racial gerrymandering claim likewise requires assessing the racial composition of districts and the way voters were

assigned to them. These protections do not create racial classifications—they identify and remedy racial

discrimination.

2. Section 2 Does Not Rely on Stereotypes.

Identifying and remedying a §2 violation does

not rest on the assumption that members of a protected class “think alike.” La. Supp.18. To the contrary, “the results test does not assume the existence

of racial bloc voting; plaintiffs must prove it.” Gingles,

478 U.S. at 48.

Proof typically comes through statistical analyses of actual voting behavior, not race-based assumptions. Id. at 52-53. Where polarization is not proven,

there is no violation and, thus, no remedy. See Katz

Amicus Br.2a. Likewise, any proposed remedial district must be supported by evidence showing that minority voters in the district share candidate preferences and other nonracial interests. See, e.g., Milligan, 599 U.S. at 21; LULAC, 548 U.S. at 434; see also

Vera, 517 U.S. at 964 (plurality). Thus, contrary to

Louisiana’s claim (at 18), §2 presumes neither that

minority voters share political interests nor that they

will elect candidates of choice merely because they

form the majority in a remedial district. Those are

facts that must be proved. Gingles, 478 U.S. at 46.

Pointing to data showing that Latino voters

were nearly evenly divided in the 2024 Presidential

Election, Louisiana (at 20) suggests that §2 may compel race-predominant remedies without strong evidence of shared political interests. That raises a

strawman problem that Gingles itself forecloses: If a

minority group does not vote cohesively or the majority does not vote as a bloc to defeat the minority

group’s preferred candidates, then there is no §2 violation. Stephanopoulos Amicus Br.18-22. And even

where some polarization is present, Gingles requires

courts to assess its extent. See 478 U.S. at 77. Weak

polarization weighs against liability in the totality-ofcircumstances analysis. See Robinson Supp.20 (collecting cases).

3. Section 2 Does Not Mandate Majority-Minority Districts or Other

Racial Targets.

Section 2 remedies in redistricting must give

the affected minority group the “opportunity ... to elect

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

That guarantee does not mean that Black voters’ candidate of choice will always win. It does not entitle

Black voters to proportional representation or a fixed

“share of political power.” La. Supp.30. Instead, §2 can

be satisfied by competitive districts in which “all candidates, regardless of race, would have ... both a fair

chance to win and the usual risk of defeat.” Lawyer,

521 U.S. at 581 (citation omitted); see, e.g., Miss. State

Conf. of the NAACP v. State Bd. of Election Comm’rs,

782 F. Supp. 3d 336, 348 (S.D. Miss. 2025) (approving

remedy where Black-preferred candidates won 73% of

the elections); Baltimore Cnty. Branch of NAACP v.

Baltimore Cnty., No. 21-CV-3232, 2022 WL 888419, at

*5 (D. Md. Mar. 25, 2022) (remedy where “the Blackpreferred candidate does not always win”). Remedying

a §2 violation thus does not require states or courts to

pick “winners and losers based on race.” See La.

Supp.2. And §2 remedies are warranted only where

“intensive racial politics” already predetermine electoral outcomes based on race. See Milligan, 599 U.S.

at 30.

Appellees (at 29) argue (without evidence) that

the constraints on §2 do not “stop Section 2 plaintiffs

from pushing for maximized majority-minority districts.” But the Gingles standard and the mandated

“intensely local appraisal” of current circumstances do

stop §2 plaintiffs from achieving maximization or proportionality. Cf. Wis. Legislature v. Wis. Elections

Comm’n, 595 U.S. 398, 405 (2022); Abbott, 585 U.S. at

617-619; see also Milligan, 599 U.S. at 28-29. For example, minorities are 20% of Arkansas’s population,

but none of its four congressional districts are majority-minority. Thus, no person of color has ever been

elected to Congress from Arkansas. But because a reasonably configured majority-minority district likely

cannot be drawn, §2 does not require a remedy. Cf.

Robinson Supp.17 (collecting cases that failed at Gingles I, precluding forced proportionality). It might be

possible to draw a second majority-White crossover

district in Arkansas. But an Arkansan plaintiff’s inability to satisfy Gingles means that §2 does not require

any opportunity districts there. See Bartlett, 556 U.S.

at 25-26 (plurality).

Appellees (at 30-31) complain that §2 “trends

toward” proportional representation “in many courtrooms,” and Louisiana (at 31) argues that rulings

against its congressional and state legislative maps

prove that §2 insists on proportionality. But this

Court has rejected such arguments: Proportionality

may provide a defense where it exists, but it is never

the baseline for equal electoral opportunity. Milligan,

599 U.S. at 28; De Grandy, 512 U.S. at 1017-1018. And

the record belies Louisiana’s and Appellees’ suggestion. Even in this 2020 census cycle, §2 cases have

been brought and won at lower rates than in earlier

periods and usually have not resulted in proportional

representation. See Katz Amicus Br.6 & n.4; Stephanopoulos Amicus Br.23-27.

Moreover, Appellees are wrong to assert (at 12)

that §2’s “chosen remedy” is “race-based districting.”

Section 2 says nothing about the form in which equal

electoral opportunity must be provided. Cf. Voinovich,

507 U.S. at 155 (§2 “says nothing about majority-minority districts”). And courts have adopted remedies

short of majority-minority districts that secure the opportunity that §2 guarantees. See, e.g., Singleton v. Allen, No. 21-CV-1291, 2023 WL 6567895, at *16 (N.D.

Ala. Oct. 5, 2023) (adopting “opportunity” district that

is “not majority Black”); Jones v. Jefferson Cnty. Bd.

of Educ., No. 2:19-CV-1821, 2019 WL 7500528, at *5

(N.D. Ala. Dec. 16, 2019) (remedial opportunity districts ranging from 38% to 46% Black); Montes v. City

of Yakima, No. 12-CV-3108, 2015 WL 11120964, at *9,

12 (E.D. Wash. Feb. 17, 2015) (remedial district with

a 46% Latino citizen population); see also Cooper, 581

U.S. at 305-306 (§2 satisfied with existing crossover

district); Abrams, 521 U.S. at 93 (court-order crossover district satisfied §2); Robinson Supp.24-25.

Nor do vote-dilution remedies require classifying voters by race or assigning them to districts on

that basis. Remedial districts can be drawn based

solely on traditional redistricting principles—such as

communities of interest—without consulting racial

data. See, e.g., Singleton, 2023 WL 6567895, at *16

(adopting remedial plan drawn without viewing race

data). They can also be drawn using election performance data without regard to their racial composition. See, e.g., Professors Amicus 7-24. Where districts

are crafted using elections data, strict scrutiny does

not apply, even if racial data is later consulted for the

“lawful purpose” of confirming §2 compliance. See Alexander, 602 U.S. at 22.

At the local level, §2 violations can be (and routinely are) addressed without any redistricting at

all— instead using remedies that require no consideration of race, including cumulative and limited voting.

See, e.g., United States v. City of Eastpointe, No. 417CV-10079, 2019 WL 2647355, at *2 (E.D. Mich. June

26, 2019); Ala. State Conf. of NAACP v. City of Pleasant Grove, No. 2:18-CV-2056, 2019 WL 5172371, at *12 (N.D. Ala. Oct. 11, 2019); Mo. State Conf. of NAACP

v. Ferguson-Florissant Sch. Dist., 219 F. Supp. 3d 949,

955-961 (E.D. Mo. 2016); United States v. Vill. of Port

Chester, 704 F. Supp. 2d 411, 453 (S.D.N.Y. 2010);

United States v. Euclid City Sch. Bd., 632 F. Supp. 2d

740, 770-771 (N.D. Ohio 2009); United States v. City

of Calera, No. CV-08-BE-1982-S, 2009 WL 10730411,

at *1 (N.D. Ala. Oct. 23, 2009).

To be sure, §2 as construed in Gingles requires

plaintiffs to present an illustrative map containing an

additional, reasonably configured majority-minority

district. See Bartlett, 556 U.S. at 19-20. This requirement applies in assessing §2 liability but does not constrain §2 remedies. Cooper, 581 U.S. at 305-306. This

difference makes sense: Requiring reasonably configured illustrative majority-minority districts at the liability phase serves to constrain proportionality and

limit the instances of §2 liability, but it does not unnecessarily require elevating race in fashioning the ultimate remedy.

4. Remedying Racial Discrimination in Voting Is Not a Zero-Sum

Game.

Louisiana (at 23) and Appellees (at 32, 47) argue that affording Black Louisianians equal electoral

opportunity is a “zero-sum game” that “uses race as a

negative.” That rests on a false premise: that remedying proven discrimination against Black voters necessarily harms non-Black voters. But by that logic, no

form of discrimination in any context could ever be addressed, since providing equal opportunity to those

previously excluded could always be cast as taking

something away from those who have benefited from

greater opportunity.

The argument also assumes—wrongly—that

White voters are entitled to preserve “safe” dilutive

districts in which racialized politics and racially polarized voting always results in White bloc voting

overriding Black voters’ preferences. And here, the

supposed “harm” does not even exist: Under SB8,

White voters decisively control five districts and remain sufficiently represented in Louisiana’s congressional delegation. Robinson Supp.42.

The other parties (Appellees at 32; State at 23)

appear to suggest—without evidence—that non-minority voters are “harmed” when they are represented

by minority-preferred candidates. Nothing supports

this demeaning stereotyping of minority elected officials, which underlies much of the opposing parties’

arguments. There is no basis to fear that non-minorities will be injured from being represented by minority officials.

Appellees (at 7) and Louisiana (at 10) are also

incorrect in suggesting that SB8 and the Robinson illustrative plans “balkanize” Louisianians into districts by race. To the contrary, the opportunity districts in those plans are the most racially diverse districts in the state. See Robinson v. Ardoin, 605 F.

Supp. 3d 759, 821-822 (M.D. La. 2022).

Court-Ordered Plans or State-Enacted Remedial Districts Are Always Time-Limited, So a Durational Limit on §2 Is Unwarranted and Not Constitutionally Required.

Concurring in Milligan, Justice Kavanaugh

questioned whether “even if Congress in 1982 could

constitutionally authorize race-based redistricting

under §2 for some period of time, the authority to conduct race-based redistricting can[] extend indefinitely

into the future.” 599 U.S. at 45. As explained previously, §2 itself addresses that concern. Robinson

Supp.9-33. It authorizes remedies only when necessary to cure proven racial vote dilution and only for so

long as race-based discrimination impedes equal access to the political process. See Robinson Supp.14-16.

Remedies need not involve racial predominance or

otherwise trigger strict scrutiny. See supra II(B)(3).

Court-ordered remedies in these cases are time-limited. Robinson Supp.31-32. And, in those limited instances where race needs to predominate to provide a

complete remedy, the use of race in the remedial plan

must be narrowly tailored to survive strict scrutiny.

Moreover, the circumstances warranting §2 remedies

have become increasingly rare over time and, with

§2’s protections, will continue to diminish. See Stephanopoulos Amicus Br.16-22. But they still exist in

some places, including, as the seven federal judges in

Robinson agreed, in Louisiana. See Robinson Supp.4147.

Louisiana (at 17-43) and Appellees (at 8-18) argue that §2 remedial redistricting must be cut off

across the board—a categorical durational limit that,

according to them, has already expired—regardless of

any case-specific facts. They go further still, asserting

that not only remedial districting, but §2’s underlying

prohibition against discrimination in redistricting

(Louisiana at 17-43) or in all voting laws (Appellees at

12-13) must itself be subject to an expiration date, untethered from the nature of the violation or the remedy needed to cure it. Both arguments are fundamentally at odds with the Constitution and the Court’s

precedent.

Remedial districts are always adopted in response to an identified instance of racial vote-dilution

and carry built-in durational limits. No redistricting

plan is permanent; each lasts at most a decade. E.g.,

Milligan, 2025 WL 2451593, at *4-6 (imposing a remedial map until the 2030 census). With each new

census, a state must reassess demographics and voting patterns to determine whether §2 demands corrective measures to ensure equal electoral opportunities.

It may not simply rely on past practice or stale analysis. See Cooper, 581 U.S. at 303-304.

Louisiana (at 29) and Appellees (at 32-33) invoke SFFA—which addressed an entirely different

context—to argue that the mere awareness of race in

redistricting under §2 is categorically impermissible,

regardless of the evidence in a particular case or the

durational limits imposed on a specific remedy.

But SFFA is inapposite: Section 2 is a remedial

statute passed under Congress’s express authority in

the Reconstruction Amendments. The voluntary admissions programs at issue in SFFA involved public

universities’ desire to use race-based admissions in

perpetuity. Cf., e.g., Grutter v. Bollinger, 539 U.S. 306,

328 (2003) (finding a compelling interest in attaining

a “diverse student body” for which, “25 years from

now, the use of racial preferences will no longer be

necessary”). Strict durational limits were deemed appropriate because the goal these admissions programs

advance (student diversity) was not remedial or measurable, and the schools’ decisions to use race in admissions were not predicated on satisfying a well-considered judicial standard governing a statute designed to

identify specific instances of current racial discrimination. Cf. SFFA, 600 U.S. at 214. Thus, this Court

held that race-based admissions programs in SFFA

are subject to absolute durational limits because the

programs did not identify a concrete measure for

achieving their diversity goals or ending their programs. Id. at 226-227. And, even in that context, the

Court’s approach reflected a “careful balance,” id. at

315 (Kavanaugh, J., concurring), as it explicitly announced in Grutter that it would permit affirmative

action for another 25 years, allowing affected actors

ample time to prepare for a new legal landscape.

But the Court has never suggested, in SFFA or

elsewhere, that a federal statute prohibiting racial

discrimination, or the claims it gives rise to, must

carry a constitutional sunset date just because the

remedies for some violations may sometimes trigger

strict scrutiny and require narrow tailoring. Section 2

bears no resemblance to the programs at issue in

SFFA. Section 2 remedies can (and increasingly do)

involve race-neutral criteria. See supra II(B)(3). And

the time-limited orders in §2 cases more closely mirror

the durational limits this Court has approved in affirmative action remedies for proven civil-rights violations. See Bd. of Educ. v. Dowell, 498 U.S. 237 (1991);

Sheet Metal Workers v. EEOC, 478 U.S. 421, 487

(1986); U.S. v. Paradise, 480 U.S. 149, 171 (1987); accord Adarand Constructors, Inc. v. Pena, 515 U.S. 200,

238 (1995) (narrow tailoring analysis must assess

“whether the program was appropriately limited such

that it will not last longer than the discriminatory effects it is designed to eliminate”) (cleaned up). While

the Court has applied case-specific durational limits

to ensure a fit between a specific remedy and the particular violation it seeks to address, no Justice in any

of these cases suggested that narrow tailoring required a categorical termination date for the underlying anti-discrimination laws or claims.

Louisiana (at 17-34) tries to cram §2 vote-dilution cases into the SFFA box, mischaracterizing remedial districting as “outright racial balancing” and decennial redistricting as “periodic review” of the sort

rejected as insufficient in the affirmative-action context. But this Court’s precedent is clear that, unlike

affirmative action in admissions, §2 does not mandate

proportional representation or racial balancing. See

Milligan, 599 U.S. at 28. Likewise, decennial redistricting is not simply an occasion for a pro forma “periodic check” where inertia may substitute for meaningful review. New plans must be drawn, and the

state must affirmatively reevaluate, based on current

conditions, whether §2 requires any effort to ensure

equal opportunity. Cf. Cooper, 581 U.S. at 303-304 (“a

legislature undertaking a redistricting must assess

whether the new districts it contemplates ... conform

to the VRA’s requirements”). In other words, the existing constraints on §2 keep remedial redistricting

within constitutional bounds.

Appellees (at 29-30) acknowledge (and then try

to discount) “the fact that any particular race-based

remedy is subject to change,” because the “problem” is

that §2 itself “is set in stone in perpetuity,” and is not

subject to a durational limit. But that is precisely the

point. There does not need to be a durational limit on

§2’s prohibition on discrimination because, unless

plaintiffs prove a violation under the strict Gingles

framework, §2 does not require any remedy, race-predominate or otherwise.

III.

CURRENT CONDITIONS IN LOUISIANA

JUSTIFIED A §2 REMEDY HERE.

Louisiana (at 27-28) and Appellees (at 34-36)

contend that conditions in Louisiana no longer support the application of §2. But the history of Louisiana’s adoption of HB1 demonstrates the persistent

role of race and racial discrimination in Louisiana politics. Since the release of the 2020 census, Louisiana

has fought to preserve the racial status quo even as

its White population has fallen precipitously. Robinson, 605 F. Supp. 3d at 778-779.

In 2022, as the Legislature began considering

congressional plans, Black voters statewide testified

about the need for more responsive representation.

The Legislature considered alternative plans that

would have offered Black Louisianians a fair electoral

opportunity in two districts. Id. at 851. These plans

satisfied the Legislature’s professed redistricting

guidelines as well as or better than HB1. See id. Contrary to Appellees’ contention (at 35-36), this was easily accomplished because “in Louisiana cities, the

Black population tends to be concentrated in very

compact, easily definable areas, partly as a result of

historical housing segregation which still prevails in

the current day,” particularly in Baton Rouge, which

HB1 packed together with Black voters in New Orleans. Id. at 784.1 Rather than choose one of these options, Louisiana selected a plan where White voters,

who usually vote as a bloc, control over 83% of congressional districts, even though White Louisianians

today are just 56% of the population—a 10 percentage-point drop since 1990. Id. at 779.

As the Robinson court found, and the Fifth Circuit affirmed, Louisiana’s explanations for this choice

were inconsistent and tenuous. Id. at 850-851. First,

Louisiana cited population equality as justifying

HB1—until a senator offered a §2-compliant plan with

a lower population deviation, at which point that “priority” gave way. Id. The Legislature next invoked traditional redistricting criteria to justify their map—yet

“proposed maps with higher levels of compactness and

with zero split precincts were rejected when they had

two majority-minority districts.” Id. at 851. That the

illustrative maps were superior to HB1 suggests that

Appellees and the court below cite stray testimony from

Appellees’ expert that “Louisiana’s Black population has become

more dispersed and integrated in the thirty years since the Hays

litigation.” App. Supp. 35. As the Robinson court explained, however, “the fact that Louisiana’s Black population is unevenly dispersed geographically when viewed statewide is not illuminating, first because congressional districts are not statewide, and

second, it overlooks patterns of significant pockets or clusters of

[Black population] that are the result of segregated housing.” 605

F. Supp. 3d at 826.

Louisiana’s shifting justifications for preferring HB1

were mere pretexts. Cf. Ames v. Ohio Dep’t of Youth

Servs., 605 U.S. 303, 309 (2025).

The Robinson court rejected Louisiana’s claim

that its history of discrimination is all in the past. 605

F. Supp. 3d at 812, 846-848. The court found significant present-day voting discrimination from the continued use of dilutive at-large local election systems to

extreme racial disparities in access to polling places.

Id. Louisiana and the United States fault the Robinson court for relying on preclearance objections under

§5. But Shelby never held that preclearance was invalid, much less that prior findings of discrimination

were unreliable. Accord Regents of the Univ. of Cal. v.

Bakke, 438 U.S. 265, 305 (1978) (§5 objections are “administrative finding[s] of discrimination”). Even after

Shelby, this Court continued to assume that a state’s

prior efforts to satisfy §5 was a compelling interest,

something it could not have done if Shelby had totally

vitiated §5. See, e.g., Bethune-Hill, 580 U.S. at 196197.

Robinson also demonstrated extreme levels of

racially polarized voting that were unexplainable as

mere partisanship. 605 F. Supp. 3d at 801-803, 840842. Indeed, racial polarization in recent Louisiana

elections exceeds that present in Gingles. Compare id.

(Black voters’ support for Black candidates at 83.893.5%, with White support at only 11.7%), with Gingles, 478 U.S. at 58-59 (Black support for Black candidates at 71-92% with White support averaging 20%).

The result of this polarization is the same today as it

was in 1982: then, as now, “there [still] has not been a

Black candidate elected to statewide office in Louisiana since Reconstruction.” Robinson, 605 F. Supp. at

845-846; accord Major, 574 F. Supp. at 341. Congress

identified such “racial bloc voting” as a current condition that can allow a state’s choice of “a particular

election method [to] deny minority voters equal opportunity to participate meaningfully in elections.” Senate Report 33.

Legislators were aware of Black voters’ concerns that HB1, combined with Louisiana’s racialized

politics, would deny Black voters any opportunity to

elect their preferred candidates in five of six districts.

Robinson, 605 F. Supp. 3d at 813, 850-851. Yet legislators deliberately adopted HB1 over a gubernatorial

veto, celebrating by “high-fiving one another, cheering, and jumping in the air.” Id. at 813.

That racial politics continue to drive electoral

outcomes in Louisiana is as evident today as it was in

1982.

The contention that conditions for Black voters

in Louisiana have changed and no longer support the

application of §2 lacks any evidentiary support, its

simply an improper effort to relitigate Robinson. Indeed, the Secretary focuses almost entirely on arguments she made and lost in Robinson (which this

Court declined to review).

In any event, the Secretary and State had an

opportunity in Robinson to defend HB1 at trial or to

again seek review in this Court. This Court should not

countenance their efforts to game the legal system

through this collateral attack on Robinson in a case

where the relevant evidence simply is not in the record. For their part, Appellees failed to raise these arguments below and now seek to blame Appellants and

the State. But the Robinson decisions (and other recent decisions) make clear that ongoing racial discrimination in Louisiana persists and justifies §2’s continued necessity.

Moreover, accepting the unfounded argument

that changed conditions should render Louisiana categorically exempt from §2 would result in seismic inequities, including a dramatic loss of representation

for Black Louisianians statewide where §2 is the only

reason that Black voters have any electoral voice. See

Robinson, 605 F. Supp. at 845-846. If freed of §2, Louisiana appears intent on eliminating both opportunity

districts. See La. Legis. Black Caucus Br.3, 11. Further, if §2 is held to be unconstitutional in Louisiana,

other states will undoubtedly claim similar exemptions from a critical voting rights law, likewise without any factual basis to justify it.

IV.

GINGLES ESTABLISHES A WORKABLE

STANDARD THAT AVOIDS UNDUE CONSIDERATION OF RACE.

Louisiana, Appellees, and the United States

mount the additional argument that Gingles is unworkable not just in Louisiana but anywhere. But for

four decades, the Gingles framework, as refined by

Shaw and its progeny, has given states clear, workable guidance on how to comply with §2 without resorting to unfettered race-based redistricting the other

parties conjure. What these parties seek would override Congress’s judgment, dismantle §2, and have untold and devastating consequences on elections and

representation not just for voters of color but for all

Americans.

States have successfully complied with §2

for decades under this Court’s existing

guidance.

Most states have met their redistricting obligations after each census without spawning §2 or Shaw

litigation. See D.C. Amicus Br.8-14; Stephanopoulos

Amicus Br.26-28; Katz Amicus Br.6. Yet, citing a

handful of cases, the other parties claim that §2 litigation and unconstitutional race-based redistricting

are rampant. The record shows otherwise: Both the

number of §2 cases filed and the number of successful

§2 cases have plummeted since 1982. Katz Amicus

Br.1-8 & app’x.

The decline in successful §2 litigation underscores the rigor of Gingles, its sensitivity to evolving

conditions, and its powerful prophylactic effect. See

Robinson Supp.13-24. Courts applying Gingles routinely deny relief when plaintiffs cannot establish the

preconditions. See Robinson Supp.20 (citing recent §2

claims failing to establish Gingles preconditions);

Stephanopoulos Amicus Br.18, 22, 28. And even when

the preconditions are met, courts frequently deny relief at the totality-of-circumstances stage. See, e.g.,

Wis. Legislature, 595 U.S. at 405; Fusilier v. Landry,

963 F.3d 447, 459-463 (5th Cir. 2020); Lopez v. Abbott,

339 F. Supp. 3d 589, 619 (S.D. Tex. 2018); see also

Katz Amicus Br.7-8.

Successful §2 cases this cycle represent a tiny

fraction of the thousands of redistricting plans

adopted nationwide without §2 challenges. Stephanopoulos Amicus Br.26-28. Those few cases where

courts have found specific violations each involve undertaking the rigorous analysis that Gingles commands and relying on detailed factual records that

prove current discrimination based on an “intensely

local appraisal” of current conditions. See, e.g., Ala.

NAACP v. Allen, No. 21-CV-1531, 2025 WL 2451166

(N.D. Ala. Aug. 22, 2025); White v. State Bd. of Election Comm’rs., No. 22-CV-62, 2025 WL 2406437 (N.D.

Miss. Aug. 19, 2025). And in most states where there

have been successful §2 challenges this cycle, no Shaw

challenge has been brought, or such challenges have

failed. E.g., Walen v. Burgum, 700 F. Supp. 3d 759

(D.N.D. 2023), aff’d in part, appeal dismissed in part,

145 S. Ct. 1041 (2025) (rejecting Shaw challenge to

state legislative districts).

Yet Louisiana complains (at 2) that this Court’s

precedents leave it perpetually facing “the indignity of

being sued for considering race too much or too little.”

But the states and the lower federal courts have consistently and narrowly applied Gingles, ensuring remedies are limited to established instances of racial discrimination. See Robinson Supp.13-24; see also D.C.

Amicus Br.8-14; Brennan Center Amicus Br.11-22.

And this Court’s precedents, properly applied, give

states “breathing room” to comply with both the VRA

and Equal Protection Clause without facing “competing hazards of liability.” See, e.g., Bethune-Hill, 580

U.S. at 196-197 (cleaned up).

Louisiana’s losses in two recent §2 cases hardly

amount to rampant abuse of §2, even if they were unfounded (which the Fifth Circuit has repeatedly held

they are not), nor do two losses justify abandoning

four decades of settled and workable precedent. La.

Supp.31. Rather, they underscore the ongoing need for

§2 to rein in recalcitrant states. Only four other states

have faced similar outcomes this cycle. Stephanopoulos Amicus Br.26-27. Many states have successfully

defeated statewide §2 challenges. See, e.g., Pierce v.

N.C. State Bd. of Elections, 97 F.4th 194 (4th Cir.

2024); Sanders, 2023 WL 4745352, at *20; McConchie

v. Scholz, 577 F. Supp. 3d 842, 851-852 (N.D. Ill.

2021). These results confirm not that Gingles is unworkable, but that it works exactly as it should—

providing a remedy only where current racial politics

are denying minority voters equal access to the political process while rejecting unproven claims.

The “damned-if-you-do, damned-if-you-don’t”

dilemma Louisiana claims it faces stems not from a

defect in the Gingles framework, but from the Callais

district court’s erroneous failure to accord Louisiana

the requisite breathing room to comply with Robinson. Opening Br.39-47. Reversing the district court

will resolve Louisiana’s dilemma without dismantling

a federal law that has gradually made the political

process more equally open.

On the other hand, adopting Louisiana’s approach of requiring all redistricting to be “race blind”

would only make matters worse, ignoring the reality

that legislatures are “always ... aware of race when

[they] draw[] district lines.” Shaw I, 509 U.S. at 646.

Without the racial predominance standard to protect

states from liability for this mere awareness of race,

no map will be safe from accusations that race was a

factor. See Miller v. Johnson, 515 U.S. 900, 928 (1995)

(O’Connor, J., concurring) (explaining that the racial

predominance standard “does not throw into doubt

the vast majority” of districts “even though race may

well have been considered in the redistricting process”).

But, if this Court believes Louisiana’s use of

race in SB8 went too far, it should remand for remedial proceedings. There are alternative, reasonably

configured maps that both meet Louisiana’s political

goals and satisfy §2 without assigning voters to districts based on race. See, e.g., Professors Amicus 7-24.

A remand would not require the Court to reconsider

long-standing precedents or issue a far-reaching constitutional ruling on limited facts. Further, remand

could address Justice Kavanaugh’s question at oral

argument (Tr. 20) on this point, e.g., to ensure that the

remedial district meets the State’s political goals and

does “not deviate substantially from a hypothetical

court-drawn § 2 district,” Vera, 517 U.S. at 994-995

(O’Connor, J., concurring), including with respect to

traditional redistricting criteria, see Professors Amicus 20-22.

Alternative Standards Proposed by Appellees, the Secretary, and the United States

Would Replace Gingles with the Intent

Standard Congress Rejected.

The other parties suggest seven scattershot

modifications to Gingles in the name of rendering §2

more “workable.” Some lower courts are already applying their proposals under the existing Gingles

framework. The few novel modifications they propose

would either expressly or in effect resurrect a purpose

requirement in §2, overriding congressional intent

and trampling well-developed precedents. Rather

than addressing any legitimate constitutional concerns, these radical proposals suffer from all the problems Congress sought to address through the results

test and would make much unconstitutional discrimination unreachable.

1. Appellees (at 43-44) contend that to render

§2 constitutional, the Court must require that plaintiffs prove “ongoing or very recent” intentional discrimination. The United States (at 21) urges a similar

“tighten[ing]” of Gingles to require that plaintiffs

prove discriminatory intent. Although it couches its

proposals as requiring an “objective likelihood that the

State intentionally discriminated,” what the United

States means by “objective likelihood,” as explained

below, exceeds even what current precedent requires

to prove intentional discrimination. The United

States frames this as merely aligning the Gingles

standard with §2’s text. But this proposal is contrary

to §2’s text, which reflects Congress’s rejection of Bolden’s intent requirement. See Milligan, 599 U.S. at

11-13. And just two years ago, this Court rejected a

similar invitation to resurrect an intent standard and

instead reaffirmed §2’s results test as a valid means

of remedying and deterring unconstitutional discrimination. Id.

2. The United States urges the Court to “make

clear” that race cannot predominate in Gingles illustrative maps. But its version of “non-predominance”

would invalidate a plan merely because the map

drawer sought to satisfy the Bartlett standard. According to the United States (at 22), plaintiffs would

have to show that a majority-minority illustrative district was drawn in a purely race-neutral process. But

this Court rejected Alabama’s nearly identical proposal in Milligan, recognizing it as just another way

of requiring proof of discriminatory intent. 599 U.S. at

24-26. Worse, adopting the United States’ version of

non-predominance would create a catch-22 for §2

plaintiffs: Regardless of how it is created, “the very

reason a plaintiff adduces a map at the first step of

Gingles is precisely because of its racial composition.”

Id. at 34 n.7. And according to the United States, that

purpose alone is enough to show racial predominance,

rendering any map that intentionally satisfied Bartlett invalid.

3. The United States further proposes (at 2325) that illustrative plans must “be superior to the

State’s” on the State’s “race-neutral” districting principles. Appellants agree that producing a “reasonably

configured” illustrative district comparable to the enacted plan under the state’s own criteria is probative

of intentional discrimination. But asking that plaintiffs’ maps be superior to the enacted map has no jurisprudential justification and demands far more than

the law requires, even for proving intentional discrimination. Cf. Flowers, 588 U.S. at 311-312 (explaining

that, under Batson, it is enough that a struck Black

juror is “similar” to a White juror who was not struck;

challenger is “not required to identify an identical

White juror for the side-by-side comparison to be suggestive of discriminatory intent”). Even alternative

maps in Shaw cases need only be “comparably consistent” with the enacted plan. Alexander, 602 U.S. at

10 (citation omitted).

This Court in Milligan made clear that it is

enough for illustrative plans to be “reasonably” comparable to the challenged plan on traditional criteria,

without requiring a “beauty contest” and without

veering into racial predominance. Milligan, 599 U.S.

at 21; see id. at 43 & n.2 (Kavanaugh, J., concurring).

Moreover, the current standard already excludes illustrative maps that unreasonably deviate from traditional criteria, or that would require a state to abandon well-settled redistricting principles, see, e.g.,

Hous. Laws.’ Ass’n. v. Atty. Gen. of Tex., 501 U.S. 419,

426-428 (1991).

Moreover, some supposedly “neutral” criteria

are anything but. In Milligan, this Court rejected Alabama’s argument that illustrative plans could not

satisfy Gingles if they did not match the State’s plan

on core retention. Such a rule “could immunize from

challenge a new racially discriminatory redistricting

plan simply by claiming that it resembled an old racially discriminatory plan.” 599 U.S. at 21-22. On remand, the Milligan court described in detail how Alabama’s intentional manipulation of purportedly neutral criteria sought to preclude the creation of a meaningful remedial district. Singleton, 782 F. Supp. 3d at

1117-1118. For similar reasons, the Court has also rejected incumbent protection as a legitimate §2 or constitutional defense. LULAC, 548 U.S. at 440; cf. Easley v. Cromartie, 532 U.S. 234, 262 n.3 (2001)

(Thomas, J., dissenting) (calling it “questionable”

whether “the goal of protecting incumbents is legitimate, even where … individuals are incumbents by

virtue of their election in an unconstitutional racially

gerrymandered district”). The United States’ new test

would allow states to immunize their plans from scrutiny (as Alabama attempted to do) by “planting a false

trail of direct evidence in the form of official resolutions, sponsorship statements and other legislative

history eschewing any racial motive, and advancing

other governmental objectives.” Senate Report 37.

Requiring plaintiffs to show superiority on

state-selected criteria assumes those criteria are valid

and insulates them from scrutiny for “tenuousness.”

See Gingles, 478 U.S. at 45. But testing whether the

state’s criteria were legitimate or pretexts for discrimination is a bedrock aspect of §2’s results test—or even

intent claims. Cf. Flowers, 588 U.S. at 298; LULAC,

548 U.S. at 440. There is no logical reason to relieve

all state-proffered criteria from §2’s “textual command” of “totality” review. Milligan, 599 U.S. at 6 (citation omitted).

4. The United States (at 25-27) and Appellees

(at 44-45) suggest requiring illustrative maps to meet

states’ purported partisan political goals. But, as the

United States acknowledges, that approach finds no

support in this Court’s precedent and indeed is foreclosed by it. This Court has explained a viable claim

of vote dilution requires plaintiffs to present an illustrative map with an additional district that is both

majority-minority, Bartlett, 556 U.S. at 19, and “perform[s]” for minority voters. Abbott, 585 U.S. at 618619. That is, under Abbott, if a new district does not

provide greater electoral opportunity for minority voters to elect preferred candidates, then it cannot satisfy

Gingles. Id. That may be difficult, if not impossible, if

an illustrative map must maintain the exact existing

partisan balance. Cf. supra II(B)(3); cf. also infra 41 &

n.4.

The United States’ standard would in effect

turn Gingles’ illustrative map requirement into Alexander’s alternative map requirement and require

proof that race predominated in the state’s map. This

proposal, which conflates these “analytically distinct”

claims, Alexander, 602 U.S. at 38, contradicts

amended §2’s text and purpose. Milligan, 599 U.S. at

41. Section 2 “says nothing about … districts dominated by certain political parties, or even districts

based entirely on partisan political concerns. Instead,

§2 focuses exclusively on the consequences of apportionment. Only if the apportionment scheme has the

effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate §

2.” Voinovich, 507 U.S. at 155.

As this Court has recognized, states have at

times deployed racial discrimination for partisan

ends. See, e.g., Cooper, 581 U.S. at 308 n.7; LULAC,

548 U.S. at 440; Hunter, 471 U.S. at 230-232. An interpretation of §2 that immunizes maps drawn based

on partisanship would prevent it from reaching even

intentional discrimination. This Court’s conclusion

that partisan gerrymandering is non-justiciable does

not license states to shut minorities out of the political

process merely because states do not like who they

may vote for.

5. The Secretary argues that lower courts evaluating illustrative plans wrongly focus on a district’s

compactness rather than the compactness of the minority population. But the geographic compactness of

the minority population is the relevant question. See

LULAC, 548 U.S. at 430-431. This requirement is satisfied if plaintiffs can draw a reasonably configured

majority-minority district. Id. If that district violates

traditional redistricting criteria to cobble together isolated pockets of minority voters, then the minority

population is not geographically compact. Id. The Secretary’s real dispute is evidentiary. She proposes new

scientific methods to measure population compactness. But that is a question to be resolved through a

“battle of the experts.” It does not require new legal

standards, nor does it resolve the question this Court

has asked the parties to address.

6. The United States argues that §2 plaintiffs

must “control for party affiliation” in proving the second and third Gingles preconditions. But it offers no

compelling reasons to account for the role of partisan

politics in the preconditions rather than in the totality

of the circumstances analysis. Since Gingles, some

lower courts have addressed the role of politics in polarized voting within the second Senate Factor. Nipper v. Smith, 39 F.3d 1494, 1513 (11th Cir. 1994) (en

banc) LULAC v. Clements, 999 F.2d 831, 850 (5th Cir.

1993) (en banc). Where a state presents evidence that

party, not race, is driving racial polarization, courts

evaluate this issue and consider the parties’ quantitative or qualitative evidence, see, e.g., Gingles, 478 U.S.

at 59, and they reject §2 claims where partisan polarization, not race, better explains minorities’ electoral

defeats. See, e.g., Sanders, 2023 WL 4745352, at *1112; Lopez, 339 F. Supp. 3d at 614.

It also bears noting that §2 remedies do not always inure to the benefit of one party. See Robinson

Supp.35 n.2. Indeed, in 2008, Louisiana’s own District

2, which is majority-Black, elected Joseph Cao, a Republican.2 And the remedial district drawn after LULAC, 548 U.S. 399, swung between Democrats and

Republicans for a decade.3

To the extent the Court wants to provide additional guidance about the role of politics in the polarized voting analysis, it could follow the Fifth and Eleventh Circuits and clarify that this consideration falls

within Senate Factor 2. The Court could also clarify

2 Cao, Joseph, Hist., Art & Archives, U.S. House of Representa-

tives, https://history.house.gov/People/Detail/44592 (last visited

Oct. 3, 2025).

3 Fares Sabawi, A Recent History of Texas’ Most Competitive Con-

gressional

District:

CD-23,

KSAT

(Oct.

2020),

https://www.ksat.com/vote-2020/2020/10/02/a-recent-history-oftexas-most-competive-congressional-district-cd-23/.

that while a complete §2 remedy unquestionably demands creating a new district that minority-preferred

candidates can win, Abbott, 585 U.S. at 617-618; §2

does not require a “safe” district where minority-preferred candidates always win.4 See De Grandy, 512

U.S. at 1014 n.11.

7. None of the other parties persuasively advocate for changing the totality-of-circumstances analysis. The United States (at 28) identifies no clear faults

in the totality analysis as it is currently applied. Instead, it simply repeats that the totality must “reveal

an objective likelihood that the State’s failure to create a majority-minority district reflects intentional

discrimination.” The United States then identifies one

of the factors—“recent, intentional official discrimination”—and asks that courts be required to weigh this

most heavily. Id. at 29. Of course, the Gingles framework already prioritizes present circumstances and

already more heavily weighs recent instances of discrimination. See Robinson Supp.15-22. While evidence of recent intentional discrimination is certainly

probative, it is not dispositive. It is merely one of the

“totality” of circumstances §2 permits courts to consider. See Milligan, 599 U.S. at 26. Even intent claims

do not require such a narrow evidentiary focus. Rogers, 458 U.S. at 625; cf. also Flowers, 588 U.S. at 302

(considering “other relevant circumstances”).

4 Compare Abbott, 585 U.S. at 617-618 (finding a district ineffec-

tive that elected the minority-preferred candidate only 20% of

the time); Abrams, 521 U.S. at 93-94 (rejecting a §2 district

where the “probability of electing a candidate is below 50%”),

with LULAC, 548 U.S. at 428 (finding a district “effective” that

elected Latino-preferred candidate 86% of the time).

Appellees (at 26-28) also argue that considering

the present-day impact on voting of other forms of discrimination, such as educational disparities, amounts

to an “effort to alleviate the effects of societal discrimination.” This misunderstands the Senate Factors:

These forms of “societal discrimination” often result

from government action. See Gingles, 478 U.S. at 6970, 80. Just as Congress could ban literacy tests to address state-sponsored educational discrimination’s

impact on voting, cf. Boerne, 521 U.S. at 526; Gaston

Cnty. v. United States, 395 U.S. 285, 289-293 (1969);

so too may Congress permit §2 to consider the effects

of other state-sponsored socioeconomic discrimination

on minority electoral opportunities in a state-enacted

plan.

Finally, Appellees imply (at 45) that under Gingles, courts improperly consider discrimination that

does not “emanate from the state.” But when a state

offers only tenuous justifications for districts that

pack or crack Black citizens in ways that—because of

stark racial polarization—regularly defeat Black-preferred candidates, see Robinson, 605 F. Supp. 3d at

850-851, that is discrimination emanating from the

State.

CONCLUSION

The decision of the district court should be reversed.

Respectfully submitted,

Sarah Brannon

Megan C. Keenan

Adriel I. Cepeda Derieux

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th St. NW

Washington, DC 20005

Sophia Lin Lakin

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

Janai Nelson

President & Director Counsel

Samuel Spital

Stuart Naifeh

Counsel of Record

Victoria Wenger

John S. Cusick

Colin Burke

NAACP LEGAL DEFENSE

& EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

(212) 965-2200

snaifeh@naacpldf.org

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

Deuel Ross

UNION FOUNDATION

I. Sara Rohani

425 California Street, Suite 700 Kameron Johnston

San Francisco, CA 94104

NAACP LEGAL DEFENSE

& EDUCATIONAL FUND, INC.

Nora Ahmed

700 14th St. NW, Suite 600

ACLU FOUNDATION

Washington, DC 20005

OF LOUISIANA

1340 Poydras St., Suite 2160

New Orleans, LA 70112

Additional Counsel Listed on Next Page

T. Alora Thomas-Lundborg

Daniel Hessel

ELECTION LAW CLINIC

HARVARD LAW SCHOOL

6 Everett St., Suite 4105

Cambridge, MA 02138

John Adcock

ADCOCK LAW LLC

3110 Canal St.

New Orleans, LA 70119

Robert A. Atkins

Yahonnes Cleary

Pietro J. Signoracci

Amitav Chakraborty

Adam P. Savitt

Arielle B. McTootle

Robert Klein

Neil Chitrao

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

Counsel for Appellants

Tracie Washington

LOUISIANA JUSTICE INSTITUTE

3157 Gentilly Blvd., Suite 132

New Orleans, LA 70122

Counsel for Appellants Dorothy Nairne, Martha Davis,

Clee Earnest Lowe, and Rene Soule

October 3, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.