Motion to Dismiss or Affirm — Press Robinson, et al., Appellants v. Phillip Callais, et al.

Supreme Court briefSep 3, 2024

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No. 24-110

IN THE

Supreme Court of the United States

PRESS ROBINSON, et al.,

Appellants,

PHILLIP CALLAIS, et al.,

Appellees.

ON A PPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

MOTION TO DISMISS OR AFFIRM

PAUL LOY HURD

PAUL LOY HURD, APLC

1896 Hudson Circle,

Suite 5

Monroe, LA 71201

EDWARD D. GREIM

Counsel of Record

GRAVES GARRETT GREIM LLC

1100 Main Street, Suite 2700

Kansas City, MO 64105

edgreim@gravesgarrett.com

(816) 256-3181

Counsel for Appellees

332469

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

1. Do private party intervenor-defendants have

standing to appeal an order enjoining state

officials from enforcing a generally applicable

state law?

2. Did the district court properly find that race

predominated when the Louisiana Legislature

openly admitted it was using a quota of two

Black-controlled districts to draw SB8, a 250mile-long district that duplicated a previously

invalidated racial gerrymander, splitting

municipalities, parishes, and communities,

linking parts of four urban areas, and tracing

the boundaries of Black and white-majority

precincts?

3. Did the district court properly find that SB8

failed to satisfy strict scrutiny based on alleged

attempts to comply with the Voting Rights Act

where the Legislature never conducted a VRA

analysis on SB8, where the Attorney General

told the Legislature that the Attorney General

was defending the prior map and didn’t believe

the VRA required a second Black district, and

where the Attorney General admitted in court

that SB8 was part of a litigating strategy?

PARTIES TO THE PROCEEDING

Appellees are Philip Callais, Lloyd Price, Bruce

Odell, Elizabeth Ersoff, Albert Caissie, Daniel Weir,

Joyce LaCour, Candy Carroll Peavy, Tanya Whitney,

Mike Johnson, Grover Joseph Rees, and Rolfe

McCollister. Appellees were plaintiffs in the district

court.

Appellants and Intervenor-Defendants below

are Alice Washington; Clee Earnest Lowe; Power

Coalition for Equity and Justice; Ambrose Sims;

Davante Lewis; Dorothy Nairne; Martha Davis;

Edwin Rene Soule; Press Robinson; Edgar Cage; and

the National Association for the Advancement of

Colored People Louisiana State Conference (the

“Robinsons”).

Defendant below is Nancy Landry, in her

official capacity as the Louisiana Secretary of State.

The State of Louisiana, represented by Louisiana

Attorney General Elizabeth B. Murrill, was an

intervenor-defendant below. And amici in the liability

phase and intervenor-defendants in the remedial

phase below are Edward Galmon, Sr., Ciara Hart,

Norris Henderson, Tramelle Howard, and Ross

Williams (the “Galmons”).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

iii

TABLE OF AUTHORITIES

INTRODUCTION

STATEMENT OF THE CASE

II.

III.

IV.

Louisiana Enacts SB8

a. Attorney General Murrill’s

Statements to the Legislature

b. Legislators’ Statements

Louisiana Voters Challenge the

Constitutionality of SB8

The Three-Judge Court Holds the

First Trial

The Three-Judge Court Enjoins SB8

as Unconstitutional Before Proceeding

to the Remedial Phase of the Trial

LEGAL STANDARD

ARGUMENT

II.

III.

The Court Should Dismiss Because

Robinson Intervenors Lack Standing

to Appeal

The District Court Properly Determined

Race Predominated

a. Direct Evidence in the Record

Proves Racial Predominance

b. Direct Evidence Lies in the State’s

Jurisdictional Statement

c. Circumstantial Evidence Also

Proves Racial Predominance

d. Politics Did Not Predominate

The District Court Properly Determined

SB8 Could Not Survive Strict Scrutiny

Based on Shaw and Its Progeny

a. The State Provided No Compelling

Interest on This Record

b. The State’s Race-Based Decision

Was Not Narrowly Tailored

i. The District Court Applied the

Correct Legal Standard

ii. The Record Shows the State

Failed to Show Its Decision

Was Narrowly Tailored

iii. The Court Should Reject the

Robinsons’ Request to Create

New Law

iv. The District Court Properly

Considered Traditional

Criteria Under Gingles

Prong 1

IV.

The District Court Did Not Unduly

Expedite Proceedings

CONCLUSION

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Perez,

585 U.S. 579 (2018)

14, 27, 29

Abrams v. Johnson,

521 U.S. 74 (1997)

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

144 S. Ct. 1221 (2024)

14, 17, 19-22, 24-26

Allen v. Milligan,

599 U.S. 1 (2023)

4, 5, 28, 31

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997)

14, 15

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

580 U.S. 178 (2017)

19, 25

Bush v. Vera,

517 U.S. 952 (1996)

18, 19, 21, 27, 28, 32

Cooper v. Harris,

581 U.S. 285 (2017)

14, 18, 19, 24, 25, 28, 32

Easley v. Cromartie,

532 U.S. 234 (2001)

Hays v. Louisiana,

936 F. Supp. 360 (W.D. La. 1996)

3, 21, 24, 28, 30

vii

Hirabayashi v. United States,

320 U.S. 81 (1943)

Hollingsworth v. Perry,

570 U.S. 693 (2013)

14, 15, 16

In re Landry,

83 F.4th 300 (5th Cir. 2023)

4, 5

Loving v. Virginia,

388 U.S. 1 (1967)

Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 n.1 (1992)

15, 16

LULAC v. Perry,

548 U.S. 399 (2006)

27, 28, 32, 33

Miller v. Johnson

515 U.S. 900 (1995)

17, 21, 23, 24, 26, 28, 30

North Carolina v. Covington,

585 U.S. 969 (2018)

Perry v. Schwarzenegger,

No. 3:09-CV-02292-WHO

(N.D. Cal., filed June 30, 2009)

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022)

4, 30

Robinson v. Ardoin,

37 F.4th 208 (5th Cir. 2022)

5, 31

viii

Robinson v. Ardoin,

86 F.4th 574 (5th Cir. 2023)

4, 5, 31

Robinson v. Ardoin,

No. 3:22-cv-00211-SDD-SDJ

(M.D. La. 2024)

1, 2, 25

Shaw v. Reno,

509 U.S. 630 (1993)

Shaw v. Hunt,

517 U.S. 899 (1996)

1, 7, 17, 25, 33

17, 19, 21, 23, 27-30, 32, 33

Students for Fair Admissions, Inc. v.

President & Fellows of Harv. Coll.,

600 U.S. 181 (2023)

Thornburg v. Gingles,

478 U.S. 30 (1986)

5, 12, 27, 28, 32, 33

Town of Chester, N.Y. v. Laroe Estates, Inc.,

581 U.S. 433 (2017)

15, 34

United States v. Hays,

515 U.S. 737 (1995)

Va. House of Delegates v. Bethune-Hill,

587 U.S. 658 (2019)

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

595 U.S. 398 (2022)

25, 27, 28, 32

Wittman v. Personhuballah,

578 U.S. 539 (2016)

STATUTES

28 U.S.C. § 2284

2, 9

REGULATIONS

Sup. Ct. R. 12.7, 18.11

INTRODUCTION

This Court should grant dismissal or summary

affirmance. This is a standard Shaw v. Reno, 509 U.S.

630 (1993), case. The Legislature, and the Attorney

General at trial, admitted a racial quota of two Blackmajority seats was Louisiana’s prime and

uncompromisable criterion. Factual and expert

evidence clearly established Louisiana’s meticulous

manipulation of Black voting age population (“BVAP”)

data. The State deliberately retraced the lines of an

infamous 1990s district that it well knew federal

courts had invalidated as a blatant racial

gerrymander, locking in 82% of the same Black

population from that old district. Dkt. 185, 308:5-9.

The district court easily identified Louisiana’s repeat

racial gerrymander and found it unjustified even with

“breathing room” for legitimate VRA compliance

efforts.

The Robinson Intervenors (“Robinsons”)

complain this unfairly erased what they attempt to

sell as a win in their mooted Voting Rights Act

(“VRA”) case—Robinson v. Ardoin, No. 3:22-cv-00211SDD-SDJ (M.D. La. 2024)—but in reality, it was their

own forum shopping that triggered the final crushing

“ping pong” volley.1 Chasing the El Dorado of a second

Black-majority district, the Robinsons had artfully

pleaded their claim only under the VRA instead of

under the Equal Protection Clause. In the resulting

single-judge Middle District of Louisiana court, they

found remarkable early success as the State mounted

1 The Robinsons’ and attempted Galmon Intervenors’ forum

shopping tactics are more fully discussed in Appellees’ Motion to

Dismiss or Summarily Affirm the Galmons’ appeal, filed this

same day.

a weak factual defense. As the Robinsons planned,

that judge had no jurisdiction to—and did not—take

up Equal Protection concerns.

When the State passed a two-Black-majoritydistrict map unlike anything presented in the

Robinsons’ case (and therefore excluding from the

second Black-majority district many of their voterplaintiffs), the Robinsons eagerly accepted, mooting

Robinson before trial. Ruling, Robinson v. Ardoin, No.

3:22-cv-00211-SDD-SDJ (M.D. La., filed April 25,

2024). But when Appellees sued and received the

three-judge district court below, the Robinsons

emptied their playbook, first urging their single-judge

court to violate 28 U.S.C. § 2284 and seize jurisdiction

from the three-judge district court, and then moving

in limine to keep the three-judge court from hearing

any VRA evidence or argument in applying strict

scrutiny. Ruling, Robinson v. Ardoin, No. 3:22-cv00211-SDD-SDJ (M.D. La., filed April 16, 2024) (order

denying motion to apply first-filed rule); Dkt.18-1, at

24-27; Dkt.144; Dkt.144-1.2 The Robinsons avoided

the VRA so thoroughly that they failed to fill their

trial time, calling not a single expert, and proffering

not a single exhibit, to prove Louisiana had a

reasonable belief that the VRA required SB8’s sinuous

second Black-majority district, “SB8-6.” Yet the

Robinsons now decry the unavoidable result of this

2 Given the extensive record and evidence supporting Appellees’

position, Appellees reference documents on the district court

docket as “Dkt.” followed by the docket number, “at,” and page

number(s). See Sup. Ct. R. 12.7, 18.11. Appellees refer to the

Jurisdictional Statements filed by parties in this Court by party

name, “Jurisdictional Statement,” and page number(s), and to

the Stay Applications filed in this Court by party name, “Stay

Application,” and page number(s).

tactic: the district court’s conclusion that they failed

to prove SB8-6 was required by the VRA.

In a final twist, the State’s representations in

its May 2024 emergency stay application gifted the

Robinsons (for the 2024 cycle) the two-Black-majoritydistrict racial gerrymander they had considered lost.

But now that this Court has more than four days to

consider the facts and law, it should dismiss or affirm.

The three-judge district court—where combined

claims and defenses under the Equal Protection

Clause and VRA truly belong—can then order a

remedy on a complete record that finally and fully

considers both legal principles. The facts will likely

show any proposed remedy with a second Blackmajority district is not required under the VRA. It will

fend off any fresh Robinson-attempted racial

gerrymander and disappoint only the Intervenors by

rejecting their invalid VRA claims. There this matter

will end.

STATEMENT OF THE CASE

After the 2020 census, the Louisiana

Legislature

enacted

HB1,

congressional

redistricting law dividing the State into its six

congressional districts. Dkt.165-1. HB1 followed the

traditional boundaries of Louisiana congressional

districts. Like Louisiana’s 2011 congressional map,

and all others since a second majority-Black district

was struck down as an unconstitutional gerrymander

in Hays v Louisiana, 936 F. Supp. 360 (W.D. La. 1996),

HB1 had one majority-Black district in southeastern

Louisiana. Dkt.165-5; Dkt.185, at 57-60, 92; Dkt.198,

at 6.

Just before HB1 passed, several groups filed

complaints in the Middle District of Louisiana,

alleging HB1 violated Section 2 of the Voting Rights

Act (“VRA”). See Robinson v. Ardoin, 605 F. Supp. 3d

759, 766, 768 (M.D. La. 2022), vacated, 86 F.4th 574

(5th Cir. 2023) (“Robinson I”). By early January 2024,

that case was on track for trial.

Louisiana Enacts SB8.

Claiming concern that the State would

ultimately lose at trial, Governor Jeff Landry called a

special legislative redistricting session on January 15,

2024, to repeal HB1 and impose a new map with two

majority-Black districts. Dkt.165-9; Dkt.165-10; State

Brief 1-2.

a. Attorney

General

Murrill’s

Statements to the Legislature

On January 15, 2024, just before redistricting

plans were introduced, Louisiana Attorney General

Elizabeth Murrill testified before the House and

Governmental Affairs Committee. As the State’s

counsel, she advised the Legislature on the Robinson

litigation. Dkt.182-31, at 7.

In Robinson, a VRA case before a single district

judge, Louisiana had suffered a “hasty and tentative”

decision after a May 2022 expedited preliminary

injunction hearing. In re Landry, 83 F.4th 300, 306

(5th Cir. 2023). As Robinson resumed after a stay

pending this Court’s decision in the Alabama

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

the Fifth Circuit observed, “[t]hat the state lacked a

full opportunity to mount a defense on the merits is

likely accurate.” Id. at 305. It recognized “the need for

further development of factual and legal aspects,”

particularly because the “the state put all its eggs in

one basket, litigating essentially that only with racepredominant considerations could the plaintiffs

justify” the second Black-controlled districts they

were proposing. Id. at 306 & n.6 (citation omitted).

The Fifth Circuit’s merits panel emphasized that

Milligan “largely rejected” this “initial approach,” and

that the State had failed to provide evidence or

meaningfully refute or challenge the plaintiffs’

evidence. Robinson v. Ardoin, 86 F.4th 574, 592 (5th

Cir. 2023) (“Robinson III”). An earlier panel of the

Fifth Circuit also pointed out that the district court

had erred in its compactness analysis at prong 1 of

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

Ardoin, 37 F.4th 208, 222 (5th Cir. 2022) (“Robinson

II”). Though the merits panel ultimately did not reject

the district court’s conclusions, it vacated the

preliminary injunction for equitable reasons,

emphasizing it was only applying clear error review to

a situation where the State had not focused on the

evidence. Robinson III, 86 F.4th at 592, 601-02. The

merits panel, along with other Fifth Circuit panels,

encouraged the State that its failure to address the

VRA issues during the preliminary injunction stage

did not bind the State in subsequent proceedings and

at trial. See id. at 592; Robinson II, 37 F.4th at 217; In

re Landry, 83 F.4th at 306 n.6. And at no point did the

Fifth Circuit order or approve a second Black-majority

district.

Fresh from this Fifth Circuit guidance, Murrill

never told legislators the State believed the VRA

required two majority-Black districts. Dkt.184, at 83.

In fact, she professed the opposite, claiming HB1

remained defensible and not unlawful. Dkt.181-1, at

11, 13-15, 17-18. The Robinson litigation, she said,

had not led to a fair or reliable result. Id. at 17-18. She

never claimed the Legislature was under any order

from the Middle District of Louisiana. Instead, she

testified there had yet to be a trial on the merits; there

was still an opportunity to try the case; and any

preliminary order from the Middle District had been

vacated. Id. at 13-14, 18-19. Nonetheless, Murrill

urged the Legislature to draw a map with two

majority-Black districts—not to comply with the VRA,

but to avoid trial before the single-judge district court.

Id. at 14, 19.

After her summary of the law and explanation

of the purpose of the special session to draw a map

with two majority-Black districts, Representative

Farnum asked her: “Isn’t [race] the only reason we’re

here right now . . . isn’t that the predominant reason?”

Id. at 15. The Attorney General admitted, “we’re here

because of . . . the court’s telling us we have to be here.

I mean, I – I think that’s part of it. You know, the – I

mean, I’m defending the map.” Id.

b. Legislators’ Statements

The same day, Senator Glen Womack

introduced SB8, a bill that repealed HB1 and

answered the Attorney General’s call to intentionally

create two majority-Black districts. Dkt.165-5, at 2, 7;

Dkt.165-10; Dkt.165-15, at 1, 3. Unlike the traditional

districts in HB1 and other recently enacted maps in

Louisiana, SB8 created a second majority-Black

district that stretched 250 miles in a jagged slash

mark from the State’s high Black population in

southeastern Baton Rouge north to Shreveport, where

the next highest Black population resided, carefully

splitting and dissecting four major metropolitan areas

to carve in pockets of Black voters along the way.

Dkt.182-10; Dkt.182-11; Dkt.182-12; Dkt. 182-13;

Dkt.185, at 56-58; Dkt.198, at 13, 39. This district

resembles the unconstitutional slash districts seen by

this Court three decades ago in the seminal case Shaw

v. Reno, 509 U.S. 630 (1993), and in Louisiana’s own

prior failed attempt to create two majority-Black

districts in United States v. Hays, 515 U.S. 737 (1995).

Dkt.182-17; Dkt.182-18; Dkt.185, at 57-60; Dkt.198,

at 2-5, 14.3

During the special session, Senator Womack

conceded in multiple public legislative hearings that

the two majority-Black districts in SB8 could not be

compromised. Dkt.181-3, at 4-5; Dkt.181-4, at 4, 32.

He repeatedly admitted:

Given the state’s current demographics,

there is not enough high Black

population in the southeast portion of

Louisiana to create two majority Black

districts, and to also comply with the US

Constitution one person, one vote

requirement. That is the reason why

District 2 is drawn around the Orleans

Parish and why District 6 includes the

Black population of East Baton Rouge

Parish and travels up I-49 corridor to

include Black population in Shreveport.

Dkt.181-3, at 4 (emphasis added); see also Dkt.181-4,

at 4. SB8 sponsor Representative Beaullieu repeated

Senator Womack’s statement on the House floor.

Dkt.181-6, at 4.

Others echoed these racial motivations. SB8

supporter Representative Carlson admitted, “the

overarching argument that I’ve heard from nearly

everyone over the last four days has been race first.”

3 Since Hays, Louisiana’s BVAP percentage has remained

relatively stagnant, Black voters have become more dispersed

and more integrated, and Louisiana has lost a congressional seat.

Dkt.185, at 60, 91-92; Dkt.198, at 58.

Dkt.181-4, at 26. He acknowledged integration made

drawing a second majority-Black district difficult. Id.

at 26-27; see also id. at 21 (Lyons); Dkt.181-3, at 8

(Pressly); Dkt.181-7, at 4 (Morris). Senator Carter

pointed out that “no sort of performance analysis had

been conducted to determine whether or not District

Two continues to consistently perform as an African

American district.” Dkt.181-3, at 6. He nonetheless

supported SB8 precisely because it created a second

district. Id. He read a statement from Congressman

Troy Carter reiterating the necessity of the twodistrict quota at all costs. Id.

Legislators

advocated

for

proportional

representation for Black voters at the cost of other

criteria—Dkt.181-1, at 13, Dkt.181-4, at 27

(Marcelle); Dkt.181-4, at 24 (Newell); Dkt.181-1, at 16

(Boyd), Dkt.181-3, at 7 (Duplessis)—even though SB8

resulted in super-proportionate representation for

Black voters (Dkt.165-6; Dkt.165-15) and Attorney

General Murrill warned against purely “proportionate

dividing” (Dkt.181-1, at 13).

Legislators supporting SB8 disavowed that

politics was the predominant force behind the plan.

Dkt.181-4, at 23-24 (Beaullieu); id. at 24 (Newell); id.

at 26-27 (Carlson). Instead, the Legislature first set

out to draw a second Black-majority seat, and then,

after the unavoidable resulting loss of an expected

Republican seat, the Legislature considered which

incumbents to protect. Dkt.184, at 72, 79. The

Legislature decided to protect Speaker of the House

Mike Johnson, Majority Leader Steve Scalise, and

Representative Julia Letlow in Districts 4, 1, and 5,

respectively. Dkt.181-3, at 3. The Legislature did not

espouse any political goals for SB8-6.

The final version of SB8 barely reached that

promised 50% BVAP threshold for Districts 2 and 6.

Dkt.165-15. Both the House and Senate passed SB8

by majority votes, and the Governor signed it into law

on January 22, 2024. Dkt.165-10.

II.

Louisiana

Voters

Challenge

the

Constitutionality of SB8.

A group of Louisiana voters, the Appellees,

challenged SB8 by filing this lawsuit against the

Louisiana Secretary of State on January 31, 2024.

Dkt.1. Appellees requested and received a three-judge

district court pursuant to 28 U.S.C. § 2284. Dkt.198,

at 16. Appellees moved for preliminary injunction,

Dkt.17, and moved unopposed for expedited briefing,

Dkt.43. The Secretary represented she needed a map

by May 15, 2024. Dkt.82, at 2.

On February 21, 2024, the district court

granted the parties’ request, consolidated the

preliminary injunction hearing with a trial on the

merits for the liability phase, and scheduled trial for

April 8, 2024. Dkt.63, at 1. The court bifurcated trial:

first to determine SB8’s constitutionality (“liability

phase”), and second, to determine any remedy

(“remedial phase”). No party or proposed intervenor

challenged this order.

The State, represented by Attorney General

Elizabeth Murrill, intervened as a defendant on

February 26, 2024. Dkt.79; Dkt.156, at 2. Two groups

of Black Louisiana voters, civil rights organizations,

and plaintiffs in Robinson moved to intervene as

defendants. Dkt.79, at 1; Dkt.156, at 2-3. The district

court allowed the Robinson Intervenors to intervene

permissively in the remedial phase on February 26,

2024, and permissively in the liability phase on March

15, 2024. Dkt.79; Dkt.114; Dkt.198, at 16. When

granting Robinsons permissive intervention in the

liability phase, the court found the “existing

representation of their interests may be inadequate

for the initial phase of the case” on specific issues.

Dkt.114, at 2 (emphasis added). The Court did not

state the representation was inadequate, as necessary

to require intervention of right under Fed. R. Civ. P.

24(a). Dkt.198, at 16. As permissive intervenors, the

court “limit[ed] their role in the initial phase to

presenting evidence and argument as to: (1) whether

race was the predominant factor in the creation of SB

8; and (2) if so, whether SB 8 can pass strict scrutiny

review.” Dkt.114, at 2. Robinsons acknowledged their

limited role and never contested their status as

permissive intervenors in the district court. See, e.g.,

Dkt.161-1, at 4 (noting the Court “permitted them to

participate to a limited extent in the liability phase”

(citation omitted)); Dkt.189-1, at 27 (noting they only

intervened as to certain “issues” (citation omitted)).

The district court allowed the other group, the

Galmons, to intervene permissively in the remedial

phase on May 3, 2024. Dkt.205.

On Saturday evening, April 6, 2024, Robinsons

moved for the first time to continue Monday morning’s

trial, or in the alternative to deconsolidate the

preliminary injunction hearing from the merits.

Dkt.161. Appellees opposed. Dkt.163. Robinsons had

previously represented they would comply with the

current schedule without delay when seeking

intervention. Dkt.112-1, at 9. The district court

granted their intervention based on those

representations. Dkt.114.

The court denied the motion on the record the

first day of trial because (1) it was untimely when

presented on the eve of trial; (2) “the intervenors’ role

in this case [was] limited to the subject matters

permitted by the Court in order to supplement the

State’s defense,” the State had the primary duty to

defend “the State’s map,” the State had determined

that an expedited briefing schedule was necessary to

ensure a fair election in 2024, and the public interest

favored expedition; and (3) the Robinsons were not

disadvantaged because they had extensive Louisiana

redistricting litigation experience. Dkt.184, at 7-8.

III. The Three-Judge Court Holds the First

Trial.

The liability phase of trial spanned April 8,

2024, to April 10, 2024. Dkt.198, at 17. The parties

introduced 13 witnesses and 110 exhibits, including

the entire legislative record. Dkt.198, at 11, 17. Each

side had eight hours to present their case. Dkt.130.

Appellees presented overwhelming evidence of

racial predominance in addition to the legislative

excerpts. Multiple legislators testified to SB8’s racebased purpose; experts provided corroborating

circumstantial

evidence.

Appellees

presented

alternative maps, including HB1 itself and Appellees’

own proposal, and other evidence showing the

Legislature could have protected incumbents without

violating traditional redistricting principles or racial

gerrymandering. Dkt.182-14; Dkt.182-16; Dkt.184,

108-11, 140; Dkt.185, at 24-25, 27-28, 54-55; Dkt.198,

at 44-45.

Defendants failed to use all their allotted time.

The Secretary of State presented no evidence.

Dkt.186, at 91. The State only presented video

excerpts from the public legislative session entered as

joint exhibits by the parties. Dkt.186, at 85-91. Using

hours of ceded time, Robinsons presented some

evidence but didn’t admit record material from

Robinson v. Ardoin due to their serious violation of

court rules. Dkt.186, at 85-91; Dkt.185, at 103-18.

At closing, the State admitted its only goal was

to stay one step ahead of the federal court’s predicted

course in drawing maps—not to comply with the VRA.

Dkt.186, at 123-24. The State admitted it did not

think it needed to repeal the HB1 map or adopt a

second majority-Black district to comply with the

VRA. Dkt.184, 26-27; Dkt.186, at 121-22. The State

conceded it conducted no VRA analysis of SB8 prior to

enactment. Dkt.184, 25-26; Dkt.186, at 123-24. It

neither hired nor consulted experts. Dkt.184, 25-26;

Dkt.186, at 124. Instead, the State merely referenced

Robinson’s preliminary findings, despite (i) admitting

those preliminary decisions never evaluated the

lawfulness of SB8 or of any map resembling SB8; (ii)

recognizing the Robinson case “did not squarely hold

that the failure to draw a second majority black

district would violate the VRA”; and (iii) never

admitting into this case any evidence from Robinson.

Dkt.184, 22-23; Dkt.186, at 85-91, 123-24.

At no point did any party present a VRA claim

or evidence that the VRA required a second majorityBlack district. The Robinsons even moved in limine to

exclude any evidence or argument on the VRA or

Gingles factors. Dkt.144; Dkt.144-1. Thus, the district

court did “not decide on the record before [it] whether

it is feasible to create a second majority-Black district

in Louisiana that would comply with the Equal

Protection Clause of the Fourteenth Amendment,”

and reserved the issue for additional record

development in the remedial phase of the trial.

Dkt.198, at 58-59.

IV.

The Three-Judge Court Enjoins SB8 as

Unconstitutional Before Proceeding to

the Remedial Phase of the Trial.

On April 30, 2024, in a 60-page opinion

analyzing the law and comprehensive record, the

district court concluded SB8 was an unconstitutional

racial gerrymander and prohibited the State “from

using SB8’s map of congressional districts for any

election.” Dkt.198, at 59. But the court recognized its

task was not complete and trial was not over; “the

remedial stage of this trial” had only begun. Dkt.198,

at 60.

On May 7, 2024, the district court issued a

scheduling order for the remedial phase of the trial.

Dkt.219. The court determined it would only order an

interim map on June 4, 2024, if the Legislature failed

to exercise “its ‘sovereign interest’ [to enact] a legally

compliant map” by then. Dkt.219, at 2-3. It noted the

Legislature was in session until June 3, 2024, and had

ample time to do so. Dkt.219, at 3.

The district court allowed briefing to proceed

concurrently and permitted “[e]ach party, intervenor

and amici” to submit one proposed map with

unlimited evidentiary support and respond to maps of

other parties. Dkt.219, at 3. Parties could raise any

VRA concerns for the first time. Dkt.219.

On May 15, 2024, this Court stayed the district

court proceedings pending appeal. On July 30, the

Robinsons filed their jurisdictional statement.

LEGAL STANDARD

This Court reviews the district court’s factual

findings for clear error and “may not set those findings

aside unless, after examining the entire record, [it is]

‘left with the definite and firm conviction that a

mistake has been committed.’” Alexander v. S.C. State

Conf. of the NAACP, 144 S. Ct. 1221, 1240 (2024)

(quoting Cooper v. Harris, 581 U.S. 285, 309 (2017)).

Legal questions are subject to de novo review. Abbott

v. Perez, 585 U.S. 579, 607 (2018). Matters committed

to the lower court’s discretion are reviewed for abuse

of discretion. See, e.g., North Carolina v. Covington,

585 U.S. 969, 977 (2018) (per curiam).

ARGUMENT

The Court Should Dismiss Because

Robinson Intervenors Lack Standing to

Appeal.

This Court should dismiss this appeal because

Robinson Intervenors, as private parties seeking to

defend “the State’s map, duly enacted into law by the

Legislature and signed by the Governor through the

democratic process,” Dkt.184, at 8, lack standing. Va.

House of Delegates v. Bethune-Hill, 587 U.S. 658, 663

(2019); Hollingsworth v. Perry, 570 U.S. 693, 705-07

(2013).

Article III standing “must be met by persons

seeking appellate review, just as it must be met by

persons appearing in courts of first instance.”

Arizonans for Official English v. Arizona, 520 U.S. 43,

64 (1997) (citation omitted). An “intervenor cannot

step into the shoes of the original party . . . unless the

intervenor independently fulfills the requirements of

Article III.” Wittman v. Personhuballah, 578 U.S. 539,

543-44 (2016) (quotation omitted). Before the Court

proceeds to the merits, it must ensure Robinson

Intervenors have met their burden to show they have

suffered an injury in fact, fairly traceable to the

appealed order, and redressable by this Court. Id. at

543. They must show they possess a “direct stake in

the outcome” of the case, Arizonans for Official

English, 520 U.S. at 64 (quotation omitted), and seek

relief for injuries affecting them in a “personal and

individual way,” Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 n.1 (1992).

Robinson

Intervenors’

Jurisdictional

Statement nowhere attempts to satisfy Article III’s

standing requirements. That is because they cannot

show a direct stake in the outcome.

Hollingsworth is dispositive. There, private

individuals challenged California’s Proposition 8 and

sued state and local officials responsible for

enforcement who, in turn, “refused to defend the law.”

Hollingsworth, 570 U.S. at 702. The district court

allowed private, official proponents of Proposition 8 to

intervene of right as defendants. Id.; Order at 1-3,

Perry v. Schwarzenegger, No. 3:09-CV-02292-WHO

(N.D. Cal., filed June 30, 2009) (ECF No. 76) (granting

intervention of right).4 Following trial, the district

court declared Proposition 8 unconstitutional and

enjoined its enforcement. Hollingsworth, 570 U.S. at

705. Intervenors appealed. Id. But this Court

dismissed the intervenors’ appeal because they lacked

standing. Id. at 715. The Court reasoned, the district

4 Accordingly, even if Robinsons intervened as of right as they

suggest in a passing footnote, Robinson Jurisdictional Statement

11 n.3 (which they did not, Dkt.198, at 16; Dkt.184, at 8; Dkt.114,

at 2 (finding only “existing representation of their interests may

be inadequate for the initial phase of the case” (emphasis

added))), intervention of right still does not establish Article III

standing. Hollingsworth, 570 U.S. at 715 (determining

intervenors of right lacked standing); Town of Chester, N.Y. v.

Laroe Estates, Inc., 581 U.S. 433, 439-40 (2017) (distinguishing

between intervention of right and standing); Va. House of

Delegates, 567 U.S. 658 (omitting discussion of form of

intervention when evaluating standing).

court’s order only “enjoined the state officials named

as defendants from enforcing” Proposition 8 and did

“not order[]” intervenors “to do or refrain from doing

anything.” Id. at 705. Thus, intervenors “had no direct

stake in the outcome of their appeal.” Id. at 705-06

(quotation omitted). The Court likewise rejected

intervenors’ effort to claim standing on behalf of

California, because intervenors had no authority to

represent the State in court and had “participated in

this litigation solely as private parties.” Id. at 710.

Their commitment to upholding the state law and

zealous advocacy did not establish standing. Id. at

707.

What was true for the initiative sponsors in

Hollingsworth and the Virginia House of Delegates in

Bethune-Hill is even more true for Robinson

Intervenors. They “have no role—special or

otherwise—in the enforcement of [SB8]. . . . They

therefore have no ‘personal stake’ in defending its

enforcement that is distinguishable from the general

interest of every citizen of” Louisiana. Hollingsworth,

570 U.S. at 707 (quoting Lujan, 504 U.S. at 560-61)

(citation omitted). Their only “interest” is a preference

for a generally applicable Louisiana law (SB8). As, the

district court concluded

the intervenors’ role in this case is

limited to the subject matters permitted

by the Court in order to supplement the

State’s defense. But the map of the

plaintiffs’ challenge is not the Robinson

intervenors’ map. It’s the State’s map,

duly enacted into law by the Legislature

and signed by the Governor through the

democratic process. It’s primarily the

State’s duty to defend the map.

Dkt.184, at 7-8. Robinsons’ heavy reliance on the

State’s interest in SB8 throughout their Jurisdictional

Statement proves the point. See, e.g., Robinson

Jurisdictional Statement 1-2. Finally, the district

court only enjoined the “State of Louisiana,”

prohibiting it “from using SB8’s map of congressional

districts for any election.” Dkt.198, at 59. It did not

direct Robinsons to do anything. This Court lacks

jurisdiction and should dismiss.

II.

The

District

Court

Properly

Determined Race Predominated.

If the Court reaches the merits, it should

affirm. “Racial considerations predominate when

‘[r]ace was the criterion that, in the State’s view, could

not be compromised’ in the drawing of district lines.”

Alexander, 144 S. Ct. at 1234 (quoting Shaw v. Hunt,

517 U.S. 899, 907 (1996) (“Shaw II”)) (footnote

omitted). States can’t escape strict scrutiny by relying

on a court case or purported goodwill. “Racial

gerrymandering, even for remedial purposes” is still

subject to strict scrutiny. Shaw I, 509 U.S. at 657.

Challengers can show racial predominance through

direct or circumstantial evidence, or as here, both. Id.

presented “overwhelming” evidence of the sort

“practically

stipulated”

proving

racial

predominance in prior cases. Miller v. Johnson, 515

U.S. 900, 910 (1995) (quotation omitted).

a. Direct Evidence in the Record

Proves Racial Predominance.

First, direct evidence abounds in Attorney

General Murrill’s statements to the Legislature

(Dkt.181-1, at 11, 13-15, 17-19; Dkt.198, at 13) and in

the confessions of her office during trial (Dkt.184, at

19-27; Dkt.186, at 121-25). Alexander, 144 S. Ct. at

1234 (“Direct evidence often comes in the form of a

relevant state actor’s express acknowledgment that

race played a role in the drawing of district lines.”).

This evidence was not “smoked out over the course of

litigation”; it was blatantly admitted. Id. “[D]irect

evidence of this sort amounts to a confession of error,”

and the Court need not look further. Id.

The State’s claim that SB8 was motivated by

VRA litigation in the Middle District of Louisiana that

would purportedly lead to a two-Black-majority seat

mandate, at least pre-appeal, also provides conclusive

direct evidence. Id. (finding this type of direct

evidence “not uncommon because States often admit

to considering race for the purpose of satisfying our

precedent interpreting the Voting Rights Act of

1965”). Thus, race predominated.

Direct evidence also saturates the legislative

record. Dkt.198, at 11-13, 17-20, 41-45. Legislative

session transcripts and trial testimony demonstrate

the Legislature established an unlawful racial target,

the Legislature would not compromise it, and the

Legislature subordinated traditional criteria to reach

it.

The Legislature’s purposeful racial quota of two

Black seats demonstrates racial predominance.

Cooper, 581 U.S. at, 299-301; Bush v. Vera, 517 U.S.

952, 962, 976 (1996) (plurality). Key legislators

“repeatedly told their colleagues that [two districts]

had to be majority-minority.” Cooper, 581 U.S. at 299.

They repeatedly cited and used a “50%-plus racial

target.” Id. at 300; Dkt.181-3, at 4 (Womack); Dkt.1814, at 4 (same); Dkt.181-6, at 4 (Beaullieu). Legislators

relentlessly applied this target as their overriding,

nonnegotiable criterion. See, e.g., Dkt.184, at 47-50,

68-69, 79-80; Dkt.181-4, at 26, 32. Sen. Womack and

others repeatedly declared the State “must” reach a

certain BVAP in two districts and “had to draw two

districts” with a majority BVAP. Dkt.181-3, at 4;

Dkt.181-4, at 4, 5, 21; Dkt.181-6, at 4. These

statements prove racial predominance. Cooper, 581

U.S. at 300; Bethune-Hill v. Va. State Bd. of Elections,

580 U.S. 178, 189 (2017); Shaw II, 517 U.S. at 906-07.

Finally, while a violation of traditional

redistricting criteria is unnecessary to show racial

predominance, Bethune-Hill, 580 U.S. at 190, ample

direct evidence establishes just that. Dkt.181-3, at 4,

8; Dkt.181-7, at 3-5; Dkt.184, at 72-74. The

Legislature believed it “needed to have two majorityminority districts, and any other redistricting

guidelines were secondary to that.” Dkt.184, at 68; id.

at 69 (“Certainly the racial component in making sure

that we had two performing African American

districts was the fundamental tenet that we were

looking at. Everything else was secondary to that

discussion.”). It believed it had to “draw a second

majority-minority district prior to any other

consideration.” Id. at 80.

The State intentionally established unlawful

“racial quotas” as the overriding, uncompromisable

criterion. Bush, 517 U.S. at 976 (quotation omitted);

see also Alexander, 144 S. Ct. at 1234; Bethune-Hill,

580 U.S. at 187; Cooper, 581 U.S. at 299-301; Shaw II,

517 U.S. at 907. Any “race-neutral considerations

‘came into play only after the race-based decision had

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

Shaw II, 517 U.S. at 907).

b. Direct Evidence Lies in the State’s

Jurisdictional Statement.

The State also concedes the point on appeal,

recognizing “virtually every legislator (and the

Governor and the Attorney General) proceed from

that court-imposed baseline: Two majority-Black

districts are mandated by the VRA.” State

Jurisdictional

Statement

18-19.

That

uncompromisable racial quota proves predominance.

Alexander, 144 S. Ct. at 1234.

c. Circumstantial

Evidence

Also

Proves Racial Predominance.

Appellees supplemented this direct evidence

with extensive circumstantial evidence from credible

experts. Dkt.198, at 22-31. The district court engaged

in a sensitive inquiry of the record, expert testimony,

and demographic maps and determined that “District

6 slashes across the state of Louisiana and includes

portions of four disparate metropolitan areas but only

encompasses the parts of those cities that are

inhabited by majority-Black voting populations, while

excluding

neighboring

non-minority

voting

populations.” Dkt.198, at 36 (quotation omitted). It

further determined based on the same that “outside of

the New Orleans and East Baton Rouge areas, the

state’s Black population is highly dispersed across the

state,” Dkt.198, at 39, and “the unusual shape of

[District 6] reflects an effort to incorporate as much of

the dispersed Black population as was necessary to

create a majority-Black district,” Dkt.198, at 41. The

record confirms the district court’s findings.5 SB8

5 Dkt.165-17; Dkt.182-10; Dkt.182-11; Dkt.182-12; Dkt.182-13;

Dkt.182-20; Dkt.182-21; Dkt.184, at 93-96; Dkt.185, at 24, 32-33,

35-43.

sacrificed traditional redistricting criteria, including

compactness,

preservation

core

districts,

communities of interest, and political subdivisions, to

reach this racial quota for District 6.6 Like the

offending districts in Miller and Hays, District 6

narrowly winds 250 miles from the northwest to

southeast corners of the State and across culturally

and economically divergent areas to selectively pick

up pockets of Black voters and leave four major

metropolitan areas bifurcated in its wake. Miller, 515

U.S. at 908-09 (noting a district “centered around four

discrete, widely spaced urban centers that ha[d]

absolutely nothing to do with each other, and

stretch[ed] the district hundreds of miles across rural

counties and narrow swamp corridors” was a

geographic “monstrosity”); Hays, 936 F. Supp. at 370.

District 6’s 250-mile-long winding shape connecting

the State’s dispersed Black voters to increase its

BVAP by 30% makes it “exceedingly obvious” that this

“was a deliberate attempt to bring black populations

into the district.” Miller, 515 U.S. at 917 (quotation

omitted); see also Alexander, 144 S. Ct. at 1234.

In sum, Appellees put on “persuasive

circumstantial evidence that race for its own sake, and

not other districting principles, was the legislature’s

dominant and controlling rationale in drawing its

district lines.” Miller, 515 U.S. at 912-13; see also

Shaw II, 517 U.S. at 910-16; Bush, 517 U.S. 952.

d. Politics Did Not Predominate.

The

Legislature’s

alleged

political

considerations are irrelevant on this record. In a

6 Dkt.182-12; Dkt.182-13; Dkt.182-15; Dkt.182-22; Dkt.182-23;

Dkt.182-24; Dkt.184, at 94-107; Dkt.185, at 35-37, 45-51, 54-55,

57, 63-68, 73-74.

major reversal of its trial posture, the State now

concedes the obvious: politics came only after the racebased decision to create another Black-majority

district, forcing Louisiana to lose one of its five

Republican seats:

The Legislature did not eliminate a

Republican-performing district merely

for political purposes; it did so because

the courts forced the Legislature to

create a second majority-Black district.

It was only then, in carrying out that

directive, that the Legislature heavily

weighted its political goals to draw the

S.B. 8 map.

State Brief 23. Nor would one expect the Republican

Legislature to draw District 6 to forfeit a Republican

seat. The district court did not clearly err in finding it

“not credible that Louisiana’s majority-Republican

Legislature would choose to draw a map that

eliminated a Republican-performing district for

predominantly political purposes.”

Finally, even though the State now concedes

the racial decision preceded (and was not entangled

with) any political decision, Appellees submitted an

“alternative map showing that a rational legislature

sincerely driven by its professed partisan goals would

have drawn a different map with greater racial

balance.” Alexander, 144 S. Ct. at 1235. Specifically,

expert testimony and simulations, Appellees’

illustrative map, and HB1 itself show the Legislature

could have protected four Republican incumbents,

including Speaker Johnson, Majority Leader Scalise,

and Congresswoman Letlow, while avoiding racial

gerrymandering and adhering to traditional

redistricting criteria. Dkt.182-16; Dkt.184, at 108-11,

140; Dkt.185, at 24-28; Dkt.198, at 44-45. All show a

mapmaker could achieve the Legislature’s “legitimate

political objectives in alternative ways that are

comparably consistent with traditional districting

principles.” Easley v. Cromartie, 532 U.S. 234, 258

(2001). The only reason the Legislature departed from

HB1 was race. As the district court reasoned: “[T]he

record reflects that the State could have achieved its

political goals in ways other than by carving up and

sorting by race the citizens of Baton Rouge, Lafayette,

Alexandria, and Shreveport. Put another way, the

Legislature’s decision to increase the BVAP of District

6 to over 50 percent was not required to protect

incumbents . . . .” Dkt.198, at 45. The district court did

not clearly err in weighing this evidence and

concluding race predominated.

The Robinsons fault Appellees for not

submitting a map showing “Louisiana could have

satisfied the Robinson rulings and also achieved the

Legislature’s political goals.” Robinson Jurisdictional

Statement 22. This map “test” is outlandishly wrong.

First, it wrongly assumes that there was a

“Robinson ruling” to “satisfy,” and that mandating

two Black-majority districts is a given fact that can’t

count as racial motivation. That is plainly wrong as a

matter of law. A desire to beat the Robinson district

court to the punch by imposing the expected remedy

in advance is precisely what proves racial

predominance. Indeed, alleged VRA compliance

efforts are how states usually trigger a finding of

racial predominance under the Shaw line. Shaw II,

517 U.S. at 911-12; Miller, 515 U.S. at 906-08, 917,

921; Abrams v. Johnson, 521 U.S. 74, 80 (1997).

Louisiana’s 1990s claim that DOJ required a nearly

identical copy of SB8-6 is exactly what triggered a

finding of racial gerrymandering. Hays, 936 F. Supp.

at 369. At any rate, the State’s independent legislative

action renders it responsible, regardless of whether its

motive was remedial, strategic, or nefarious. Miller,

515 U.S. at 912. Thus, the baseline for testing for race

is not Robinson, it is HB1, the non-gerrymandered

map that Robinson (and then the State) sought to

displace via SB8.

Given this law, if there had been any factual

dispute here about legislative motivation (and there

isn’t), the correct “test” map would be to determine if

it was necessary to create SB8-6 to meet the

Legislature’s goals of protecting Republican

incumbents. That’s because alternative maps prove

racial predominance precisely by showing the

Legislature could have achieved its political objectives

without intentionally segregating voters to inch BVAP

above the 50% benchmark. Cooper, 581 U.S. at 318.

Appellees’ proposed illustrative map and HB1 did just

that. HB1, which was repealed by SB8’s gerrymander,

protected all five incumbents.

Second, alternative maps are only necessary

where there is a factual dispute about whether politics

or race drove a given decision. But as just noted, there

is no dispute here: the facts show, and the State

admits, that the two-district racial quota was set first,

and only later did politics determine which one of the

five Republicans’ seats would be sacrificed to create

the second Black-majority district. Cooper, 581 U.S. at

318; id. at 319 (“An alternative map is merely an

evidentiary tool to show that such a substantive

violation has occurred; neither its presence nor its

absence can itself resolve a racial gerrymandering

claim.”). Alexander, likewise, merely said when direct

evidence is slim, an alternative map bolsters a case of

racial predominance. Alexander, 144 S. Ct. at 1235,

1249-50. Here, the State’s admission ends the matter.

III. The

District

Court

Properly

Determined SB8 Could Not Survive

Strict Scrutiny Based on Shaw and Its

Progeny.

Since Appellees satisfied their burden, the

“burden shifts to the State to prove that the map can

overcome the daunting requirements of strict

scrutiny.” Alexander, 144 S. Ct. at 1236.

a. The State Provided No Compelling

Interest on This Record.

The State must first show its “decision to sort

voters on the basis of race furthers a compelling

government interest.” Id. (quoting Cooper, 581 U.S. at

292). The Court has assumed without deciding that

the VRA suffices. Bethune-Hill, 580 U.S. at 193. But

even with some breathing room for error, the State

must still believe the racial gerrymander is “necessary

under a proper interpretation of the VRA.” Wis.

Legislature, 595 U.S. at 404 (quoting Cooper, 581 U.S.

at 306).

Here, the State fails that threshold inquiry: it

repeatedly conceded that it did not actually rely on the

VRA or believe the VRA required it to draw a second

majority-Black district. Dkt.184, at 24-27; Dkt.186, at

121-24. Instead, Louisiana’s real “interest” was

strategic: disposing of the Robinson litigation so that

it could draw its own racial gerrymander, achieved

through the enactment of SB8. Ruling, Robinson v.

Ardoin, No. 3:22-cv-00211-SDD-SDJ (M.D. La., filed

April 25, 2024). This sort of litigation strategy

provides no compelling interest to justify “odious”

racial sorting. Shaw I, 509 U.S. at 657 (quoting

Hirabayashi v. United States, 320 U.S. 81, 100 (1943))

(citing Loving v. Virginia, 388 U.S. 1, 11 (1967)).

Indeed, this tactic is not new, and this Court

has long exercised vigilance when States defend strict

scrutiny based on third-party litigation threats

regarding the VRA, rather than asserting their own

interest under the VRA itself. Thus, when Georgia

claimed to satisfy strict scrutiny because it had

acceded to repeated, aggressive DOJ preclearance

demands, this Court instantly recognized that “the

State’s true interest in designing the Eleventh

District was creating a third majority-black district to

satisfy the Justice Department’s preclearance

demands.” Miller, 515 U.S. at 921. That alone,

however, did not suffice: “We do not accept the

contention that the State has a compelling interest in

complying with whatever preclearance mandates the

Justice Department issues.” Id. at 922. So too here:

Louisiana has no compelling interest in appeasing

litigants or front-running allegedly hostile district

courts).

b. The State’s Race-Based Decision

Was Not Narrowly Tailored.

Even if the State proves it truly intended to

comply with the VRA, rather than jumping ahead of a

worrisome district court, its task has just begun. The

Court must “then determine whether the State’s use

of race is ‘narrowly tailored’—i.e., ‘necessary’—to

achieve that interest. This standard is extraordinarily

onerous because the Fourteenth Amendment was

designed to eradicate race-based state action.”

Alexander, 144 S. Ct. at 1236 (citing Students for Fair

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

600 U.S. 181, 206 (2023)).

i. The District Court Applied the

Correct Legal Standard.

The State must present a “strong basis in

evidence” that the VRA “required” or “demanded”

such racial sorting. Wis. Legislature v. Wis. Elections

Comm’n, 595 U.S. 398, 404 (2022) (per curiam)

(quotation omitted). Mere belief that “the VRA might

support race-based districting—not that the statute

required it” is insufficient. Id. at 403 (citation

omitted).

But even a strong basis to believe a VRA

violation necessitates two majority-Black districts

does not alone satisfy narrow tailoring. Shaw II, 517

U.S. at 915. That is because a VRA violation

somewhere (assuming even that there was a fully

litigated decision so holding, which did not happen

here) does not permit the State to draw a majorityBlack district just anywhere. LULAC v. Perry, 548

U.S. 399, 431 (2006); Bush, 517 U.S. at 979; Shaw II,

517 U.S. at 916-17 (rejecting that “once a legislature

has a strong basis in evidence for concluding that a §

2 violation exists in the State, it may draw a majorityminority district anywhere, even if the district is in no

way coincident with the compact Gingles district”

(citation omitted)).

Rather, an intentionally created majorityBlack district must remedy the alleged wrong in a

particular area. Shaw II, 517 U.S. at 916-17. This

requires at a minimum a “strong showing of a preenactment analysis with justifiable conclusions.”

Abbott v. Perez, 585 U.S. 579, 621 (2018); Wis.

Legislature, 595 U.S. at 404 (noting that a State “must

have a ‘strong basis in evidence’ to conclude that

remedial action was necessary, ‘before it embarks on

an affirmative-action program’” (quoting Shaw II, 517

U.S. at 910)).

Specifically, before enactment, the State must

“carefully

evaluate”

whether

the

Gingles

preconditions are met based on “evidence at the

district level.” Wis. Legislature, 595 U.S. at 404-05.

The State may not “improperly rel[y] on

generalizations” but must instead answer the “local”

question—i.e. “whether the preconditions would be

satisfied as to each district.” Id. at 404 (quotation

omitted). A remedial district that does not contain a

“geographically compact” population cannot satisfy

Gingles 1 or strict scrutiny. Shaw II, 517 U.S. at 916;

LULAC, 548 U.S. at 430-31.

The State cannot outsource this inquiry by

relying on third party analyses, whether non-final

judicial factfinding at an expedited hearing or a wellsupported letter after months of analysis by experts at

the U.S. Department of Justice Civil Rights Division,

Voting Section. Shaw II, 517 U.S. at 911-12, 918;

Miller, 515 U.S. at 921-24; Hays, 936 F. Supp. at 36971.

Finally, traditional redistricting principles

matter here too. A state legislature must always

satisfy traditional redistricting principles to comply

with the VRA. Milligan, 599 U.S. at 30; LULAC, 548

U.S. at 431; Bush, 517 U.S. at 979. Thus, some earlier

law’s purported VRA noncompliance cannot justify a

new, non-compact district. Shaw II, 517 U.S. at 91517; Bush, 517 U.S. at 979. The “leeway” afforded

States only allows for “reasonable compliance

measures” once the State meets each of these

requirements. Wis. Legislature, 595 U.S. at 404;

Cooper, 581 U.S. at 293. It never permits them to

forego analysis altogether. In keeping with these

requirements, the district court gave the State ample

breathing room and properly concluded the State

could not satisfy strict scrutiny based on the record.

ii. The Record Shows the State

Failed to Show Its Decision

Was Narrowly Tailored.

The State failed to satisfy its onerous burden to

show that race-based sorting was necessary to remedy

a VRA violation. It conceded at trial it conducted no

pre-enactment analysis of whether the VRA required

its race-based steps or whether SB8 remedied any

VRA violation. Dkt.184, at 24-26; Dkt.186, at 122-25.

On strict scrutiny, this alone dooms the State. Abbott,

585 U.S. at 621.

The State’s complete reliance on the allegedly

ominous presence of the Robinson district court fails

for four reasons.

First, the State and Robinsons admitted no

evidence from Robinson in the district court to show a

strong basis in evidence—assuming such facts exist in

a case considering maps nothing like SB8. The State

relied on Attorney General video statements

referencing the litigation writ large. The Robinsons

called no Robinson VRA witnesses and bitterly fought

to exclude any VRA evidence or argument. Dkt.144.

Second, Louisiana and the Robinsons

disavowed reliance on any Robinson expert reports.

Dkt.186, at 124 (“[I]t was also not necessary for the

legislators to parse the nuances of the expert reports

themselves.”); cf. Shaw II, 517 U.S. at 910. Instead,

like the Robinsons, Louisiana argued that

preliminary “rulings” which “did not squarely hold

that the failure to draw a second majority black

district would violate the VRA” could alone “supply

the strong basis in evidence.” Dkt.186, at 123-25.

But third, reliance on preliminary opinions

from Robinson to provide a strong basis in evidence is

misguided. This Court has repeatedly insisted that

States cannot simply cite pressure from threatened or

ongoing litigation (from DOJ or otherwise) to

establish a VRA defense. Shaw II, 517 U.S. at 911-14,

918; Miller, 515 U.S. at 921-24; Hays, 936 F. Supp. at

369-71 (Louisiana failed to show a strong basis in

evidence that the VRA required a district nearly

identical to SB8-6, despite DOJ’s repeated refusal to

preclear maps without two Black-majority districts

out of seven).

Fourth, the Robinson opinions involved

dissimilar voters and areas, and the State never

frontally attacked the plaintiffs’ VRA showings,

leaving key arguments unaddressed. The Middle

District of Louisiana’s findings were based entirely on

those plaintiffs’ illustrative plans, none of which

created majority-Black districts in northwest

Louisiana. They instead “connect[ed] the Baton Rouge

area to the Delta Parishes along the LouisianaMississippi border.” Robinson I, 605 F. Supp. 3d at

785 (quotation and footnote omitted). The Middle

District repeatedly emphasized the State’s failure to

contest, challenge, or even present evidence in

response to plaintiffs’ evidence. Id. at 823. It decided

based on this limited record plaintiffs would “likely”

prevail; it did not decide what the VRA actually

required. Id. at 766.

The Fifth Circuit, reviewing for clear error,

cautioned that plaintiffs had yet to prove their case:

“The Plaintiffs have prevailed at this preliminary

stage given the record as the parties have developed it

and the arguments presented (and not presented). But

they have much to prove when the merits are

ultimately decided.” Robinson II, 37 F.4th at 215

(emphasis added). It also emphasized the State “put

all their eggs” in one basket, a strategic misstep. Id.

at 217. The Fifth Circuit reiterated its wariness after

concluding the district court had erred in its

compactness analysis. Id. at 222.

The Fifth Circuit merits panel again focused

solely on the illustrative maps—each of which

“connect[ed] the Baton Rouge area and St. Landry

Parish with the Delta Parishes far to the north along

the Mississippi River”—without analyzing other parts

of the State. Robinson III, 86 F.4th at 590. The court

stressed the limited nature of its clear error review

and the lack of a trial on the merits. Id. at 592. The

Fifth Circuit emphasized the State failed to provide

evidence or meaningfully refute or challenge

plaintiffs’ evidence and the Supreme Court’s decision

in Allen v. Milligan “largely rejected” the “State’s

initial approach.” Id. The Fifth Circuit encouraged the

State that its failure to address the VRA issues during

the preliminary injunction stage did not bind the

State in subsequent proceedings and at trial. Id. The

Fifth Circuit never ordered the State to create two

majority-Black districts, and it vacated any order that

may have been imposed by the Middle District. Id. at

602. There was no court order or mandate to enact

SB8 or repeal HB1 in January 2024.

These opinions, “which did not squarely hold

that the failure to draw a second majority black

district would violate the VRA,” did not give the State

unfettered license or “breathing room” to enact this

unconstitutional scheme, Dkt.186, at 123, when that

scheme fell squarely outside the scope, reasoning,

maps, and case or controversy in Robinson. Even an

established duty to draw another VRA district in a

particular area does not allow the State to draw a

different majority-minority district elsewhere. Shaw

II, 517 U.S. at 916-17. The State’s reliance is nothing

more than a “pure error of law” that cannot satisfy

strict scrutiny. Cooper, 581 U.S. at 306 (citation

omitted).

iii. The Court Should Reject the

Robinsons’ Request to Create

New Law.

The Robinsons argue the “strong basis in

evidence” inquiry should not require Gingles analysis

for SB8—despite the clear holdings of Wisconsin

Legislature v. Wisconsin Elections Commission,

Cooper v. Harris, Bush v. Vera, and Shaw II—because

the facts (which also mirror the facts in these cases)

warrant a departure. Robinson Jurisdictional

Statement 27-30. But this Court has always required

the State to analyze whether the alleged remedial

district would actually remedy a VRA violation;

otherwise, the VRA would completely swallow the

Equal Protection Clause. Shaw II, 517 U.S. at 916-17.

Furthermore, the State never analyzed SB8-6

or any district resembling it in the Robinson litigation

or otherwise. Accordingly, any pre-enactment analysis

in the Robinson litigation cannot support narrow

tailoring. Wis. Legislature, 595 U.S. at 404-05; Cooper,

581 U.S. at 301-04, 306; LULAC, 548 U.S. at 430-31;

Shaw II, 517 U.S. at 916. No one asked the State to

“satisfy the Gingles preconditions a second time.”

Robinson Jurisdictional Statement 28. But the State

must satisfy them for SB8 at least once.

iv. The District Court Properly

Considered

Traditional

Criteria Under Gingles

Prong 1.

Finally, the Robinsons claim the district court’s

analysis of communities of interest was clearly

erroneous. They do not contest the court’s other

redistricting criteria findings for Gingles prong 1,

even though others such as lack of compactness are

dispositive. LULAC, 548 U.S. at 430-31 (“A State

cannot remedy a § 2 violation through the creation of

a noncompact district.” (citing Shaw II, 517 U.S. at

916)).

But regardless, the record instructs that the

district court’s communities of interest analysis was

not clearly erroneous. For example, Senator Womack

conceded SB8 did not consider communities of

interest. Dkt.181-3, at 4-5. Other legislators voiced

the same. Dkt.181-6, at 4-5; Dkt.181-7, at 4-5;

Dkt.184, at 72-74. And Appellees’ expert Michael

Hefner, a demographer who has 34 years of

redistricting experience in Louisiana and has resided

in the State his entire life, testified at length about the

absence of unitary communities of interest in SB8 and

division of traditional communities of interest due to

SB8’s uncharted path. Dkt.182-8; Dkt.185 at 9-10, 4751, 57-59, 61-66. Robinsons’ alleged I-49 community is

a post-hoc rationalization, analogous to North

Carolina’s invalidated I-85 corridor district in Shaw.

509 U.S. at 635-36.

IV.

The District Court Did Not Unduly

Expedite Proceedings.

The State of Louisiana only appeals the

injunction order. State Jurisdictional Statement 4-5.

Since Robinsons lack standing on their own, they

cannot raise other procedural orders on appeal. See

Town of Chester, N.Y. v. Laroe Estates, Inc., 581 U.S.

433, 440 (2017). Even if Robinsons had standing, these

claims would fail; the district court did not abuse its

discretion.

First, the court did not unduly expedite

proceedings. The district court recognized expedition

was necessary in light of the parties’ interests in

expedition, the Secretary’s May 15 deadline, and the

public interest. Dkt.43; Dkt.62; Dkt.82, at 2; Dkt.184,

at 7-8. When Robinsons moved for intervention, they

represented they would not delay trial. Dkt.112-1, at

9. They only objected several weeks after they

intervened on the eve of trial without any showing of

cause. As permissive intervenors, they have no

freestanding right to a certain procedural timeline.

Given their extensive experience in Louisiana

redistricting litigation and their supplemental role in

this litigation, they suffered no prejudice. The case

was the State’s to defend, the State did not oppose this

timeline, and in fact, the State argued before this

Court that greater expedition from the district court

would have been necessary to ensure a map for the

2024 election. See generally State and Secretary of

State Stay Application. Even the Robinsons bemoaned

the lack of time to impose a remedial map given the

May 15 deadline in their application for a stay.

Robinson Stay Application 6-7. The district court did

not abuse its discretion by seeking to accommodate

this deadline.

Robinsons raise several other “procedural

errors.” Robinson Jurisdictional Statement 36. But

these are belied by the record. For example, they

complain of the lack of discovery; but they took

depositions and did not obtain additional discovery

because they had a limited role as permissive

intervenors, the State (who oversaw the defense) did

not ask for discovery, and Robinsons never presented

evidence of necessary discovery or its potential impact

on the case outcome. This was not a factually difficult

case; the abundance of direct evidence was readily

available to the court in the public legislative record

and experts were made available for depositions. They

also criticize the Court for disallowing evidence from

Robinson v. Ardoin, but the inadmissibility of this

evidence was due to Robinsons own violation of

courtroom policies: the very fact witness they planned

to use to admit the record was present while the court

and parties discussed how to establish a foundation

for this evidence. Dkt.185, at 103-18. This error falls

squarely on them. Finally, they stress the lack of time

to put on their case. But they did not even use all the

time they had; they were not prejudiced by this order.

CONCLUSION

For

the

foregoing

reasons

Appellees

respectfully ask the Court to dismiss or summarily

affirm and remand for remedial proceedings to

continue.

EDWARD D. GREIM

Counsel of Record

GRAVES GARRETT GREIM LLC

1100 Main Street, Suite 2700

Kansas City, Missouri 64105

edgreim@gravesgarrett.com

(816) 256-3181

PAUL LOY HURD

PAUL LOY HURD, APLC

1896 Hudson Circle, Suite 5

Monroe, LA 71201

Counsel for Appellees

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.