Amicus Curiae Brief — Greg Abbott, et al., Applicants v. League of United Latin American Citizens, et al.

No. 25A608

________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________

GREG ABBOTT, ET AL., Applicants,

v.

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL., Respondents.

________________________________________

BRIEF OF AMERICA FIRST LEGAL FOUNDATION

AS AMICUS CURIAE

IN SUPPORT OF APPLICATION TO STAY

________________________________________

DANIEL Z. EPSTEIN

AMERICA FIRST LEGAL FOUNDATION

611 Pennsylvania Ave. SE #231

Washington, DC 20003

R. TRENT MCCOTTER

Counsel of Record

TAYLOR M. MYERS*

WALKER FORTENBERRY^

BOYDEN GRAY PLLC

800 Connecticut Ave. NW

Suite 900

Washington, DC 20006

(202) 706-5488

tmccotter@boydengray.com

Counsel for Amicus Curiae

* Admitted only in Maryland;

^ admitted only in Alabama.

Practice supervised by D.C. Bar

Members practice supervised by

D.C. Bar Members.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

IDENTITY AND INTEREST OF THE AMICUS CURIAE ......................................... 1

SUMMARY OF THE ARGUMENT .............................................................................. 1

ARGUMENT .................................................................................................................. 3

I.

The Majority Decision Below Applied the Wrong Legal Standard ...................... 3

A. “Some Likelihood” of Success Is Insufficient, Especially for Enjoining an

Act of a State Legislature .............................................................................. 3

B. The Majority Created a False Dichotomy by Saying the 2025 Map Was

Either Exclusively Partisan or Predominantly Racial ................................. 5

II.

The Remaining Stay Factors Decisively Favor Texas.......................................... 7

A. The Injunction Inflicts Irreparable Harm on State Sovereignty ................. 7

B. The Eleventh-Hour Injunction Disrupts Ongoing Elections ....................... 9

III. The Court Should Stay the Decision Below Pending the Outcome of Callais .. 10

CONCLUSION............................................................................................................. 13

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TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Perez,

585 U.S. 579 (2018) .................................................................................................. 7

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

602 U.S. 1 (2024) .......................................................................................... 4, 5, 6, 8

Davis v. Pension Benefit Guar. Corp.,

571 F.3d 1288 (D.C. Cir. 2009)................................................................................. 4

Diné Citizens Against Ruining Our Env’t v. Jewell,

839 F.3d 1276 (10th Cir. 2016) ................................................................................ 4

EOG Res., Inc. v. Lucky Land Mgmt., LLC,

134 F.4th 868 (6th Cir. 2025) ................................................................................... 5

Growe v. Emison,

507 U.S. 25 (1993) .................................................................................................... 8

Maryland v. King,

567 U.S. 1301 (2012) ................................................................................................ 7

Merrill v. Milligan,

142 S. Ct. 879 (2022) .......................................................................................... 9, 10

Miller v. Johnson,

515 U.S. 900 (1995) .................................................................................................. 6

Moore v. Harper,

600 U.S. 1 (2023) ...................................................................................................... 8

Nken v. Holder,

556 U.S. 418 (2009) .............................................................................................. 3, 7

Pharm. Rsch. & Mfrs. of Am. v. Walsh,

538 U.S. 644 (2003) .................................................................................................. 3

Purcell v. Gonzalez,

549 U.S. 1 (2006) .................................................................................................. 2, 9

Trump v. Int’l Refugee Assistance Project,

582 U.S. 571 (2017) .................................................................................................. 8

White v. Weiser,

412 U.S. 783 (1973) .................................................................................................. 8

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IDENTITY AND INTEREST OF THE AMICUS CURIAE1

Amicus curiae America First Legal Foundation (“AFL”) is a 501(c)(3) non-profit

organization dedicated to promoting the rule of law in the United States and

defending individual rights guaranteed under the Constitution and federal statutes.

AFL believes that the federal judiciary must exercise its equitable powers with

extraordinary caution when overriding the will of a democratically elected

legislature.

SUMMARY OF THE ARGUMENT

The decision below made several critical, reinforcing errors that warrant an

immediate stay.

First, the majority dramatically lowered Plaintiffs’ burden on the merits.

Instead of requiring a “substantial likelihood” or “clear showing” of success as

dictated by this Court’s precedent, the court below held that Plaintiffs need only show

“some likelihood” of success. The court compounded this error by applying a “sliding

scale” approach—one rejected by recent jurisprudence—permitting Plaintiffs to

bolster an exceptionally weak case on the merits with supposedly stronger arguments

on other preliminary injunction factors. These reinforcing errors led the majority

below to grant relief on a record woefully insufficient to declare unconstitutional an

act of a State legislature. See Part I.A, infra.

1 No counsel for any party has authored this brief in whole or in part, and no entity or person, aside

from amicus curiae and its counsel, made any monetary contribution intended to fund the preparation

or submission of this brief.

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Second, the majority below also created a false dichotomy, insisting that unless

the record showed the legislature was motivated “exclusively” by partisan

considerations, then it must have been primarily motivated by improper racial

considerations. That is not only logically flawed, but also impossible to square with

this Court’s precedent. See Part I.B, infra.

Third, the balance of equities and irreparable harm tilt decisively toward

Texas. Enjoining a duly enacted State congressional map constitutes a per se

irreparable injury to State sovereignty. See Part II.A, infra. And, despite the

majority’s protestations to the contrary, the decision below throws an entire State’s

congressional elections into absolute chaos, just days before filing deadlines—

precisely the kind of scenario where Purcell dictates a stay of any relief. See Part II.B,

infra.

Fourth, judicial prudence counsels a stay pending this Court’s decision in

Louisiana v. Callais, No. 24-109, which squarely addresses the constitutional

boundaries of race-conscious redistricting and the tension between the Voting Rights

Act and the Fourteenth Amendment. The court below at the very least should have

stayed its hand pending this Court’s guidance. See Part III, infra.

For all these reasons, as well as those in Texas’s own brief, the Court should

grant the Application.

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ARGUMENT

I.

The Majority Decision Below Applied the Wrong Legal Standard.

Obtaining a preliminary injunction in this context is the legal equivalent of

hurdling a difficult pole vault. But the district court’s fundamental legal errors, which

compounded each other as explained below, lowered the crossbar to the point that

Plaintiffs could simply walk over it. Those errors warrant a stay.

A.

“Some Likelihood” of Success Is Insufficient, Especially for

Enjoining an Act of a State Legislature.

1. The majority opinion employed the wrong legal standard on the most

important aspect of the case: Plaintiffs’ burden on the merits. The majority stated

that Plaintiffs need only demonstrate “some likelihood” of success—rather than a

“substantial likelihood”—to obtain a preliminary injunction. App.53 & n.159; App.55.

That was wrong. This Court has held that even in a run-of-the-mill case, a

plaintiff seeking an injunction must make a “strong showing” of likelihood of success

on the merits, Nken v. Holder, 556 U.S. 418, 426 (2009), sometimes phrased as a

“clear showing” or “substantial likelihood” of success on the merits, Pharm. Rsch. &

Mfrs. of Am. v. Walsh, 538 U.S. 644, 662 (2003); see App.175 (Smith, J., dissenting)

(arguing that “substantial” is “part of the first factor in no uncertain terms”).

A strong standard is especially appropriate because Plaintiffs sought to enjoin

an act of a State legislature on the basis that it was racist. As this Court has

explained, not only is there a presumption of good faith by State legislatures, but

courts must also consider (1) “the Federal Judiciary’s due respect for the judgment of

state legislators, who are similarly bound by an oath to follow the Constitution”;

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(2) avoiding “declaring that the legislature engaged in ‘offensive and demeaning’

conduct”; and (3) wariness of “plaintiffs who seek to transform federal courts into

‘weapons of political warfare’ that will deliver victories that eluded them ‘in the

political arena.’” Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1, 11 (2024).

If there were ever a scenario where a plaintiff must make a “clear,” “strong,”

and “substantial” showing of likelihood of success, this is it. By requiring only “some

likelihood” of success, the majority opinion below circumvented the “extraordinary

caution” required in these cases and failed to afford the legislature the presumption

of good faith mandated by the court.

Further, the majority opinion itself made clear that this is no trivial

distinction. The majority declined to say, for example, that Plaintiffs would prevail

under any test. If anything, the court highlighted the weakness of Plaintiffs’ merits

by saying that a borderline showing could be bolstered by a stronger showing on other

preliminary injunction factors. App.55.

Applying the wrong legal test to the most important aspect of this case was

clearly an error worthy of granting Texas’s application for a stay.

2. The premise of the lower court’s “sliding scale” approach is also wrong. As

then-Judge Kavanaugh explained, the “sliding-scale approach to preliminary

injunctions—under which a very strong likelihood of success could make up for a

failure to show a likelihood of irreparable harm, or vice versa—is ‘no longer

controlling, or even viable.’” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296

(D.C. Cir. 2009) (Kavanaugh, J., concurring); see also, e.g., Diné Citizens Against

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Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1282 (10th Cir. 2016) (“Under [the

Supreme Court’s] rationale, any modified test which relaxes one of the prongs for

preliminary relief and thus deviates from the standard test is impermissible.”); EOG

Res., Inc. v. Lucky Land Mgmt., LLC, 134 F.4th 868, 885 (6th Cir. 2025) (same).

Plaintiffs therefore could not bolster a weak merits case with supposedly

strong showings on other factors—and, to be clear, Texas is right that Plaintiffs did

not make strong showings on those factors anyway. Emergency.Appl.for.Stay.38.

Even if the sliding-scale framework were viable, it still requires the court to

find the other factors make up for a weaker showing of “substantial likelihood” of

success on the merits, not just “some likelihood.” In other words, the court improperly

gave Plaintiffs two breaks: one by lowering the merits showing, and then a second by

letting other factors bolster that already-weak merits requirement. Judge Smith’s

dissent thus rightly called out the majority for using a “watered-down formulation

because of the omission of the word ‘substantial’” (as discussed above), combined with

“a watered-down formulation because of the sliding scale.” App.178 (Smith, J.,

dissenting).

By the end, the lower court did not require anything remotely close to the

strong merits showing this Court’s precedent mandates.

B.

The Majority Created a False Dichotomy by Saying the 2025 Map

Was Either Exclusively Partisan or Predominantly Racial.

This Court’s precedent holds that Plaintiffs must show that race was “the

legislature’s dominant and controlling rationale.” Alexander, 602 U.S. at 10. On

numerous occasions, however, the court below said the record must demonstrate the

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Texas Legislature’s motivation was “exclusively partisan” or else it would be deemed

predominantly racial. App.79. The court even framed them as alternatives:

“exclusively partisan rather than predominantly racial.” App.106.

That is a false dichotomy. A legislature can be predominantly—but not

exclusively—motivated by partisan interests over racial interests. Under this Court’s

precedent, that is lawful. Indeed, this Court’s current precedent holds that a

legislature may consider race, but it cannot be the predominant motivating factor.

See Miller v. Johnson, 515 U.S. 900, 916 (1995). The error of the decision below is

even more obvious when one considers that this Court has recognized that legislative

awareness and discussions of race are commonplace in redistricting, meaning a

plaintiff will almost always be able to find references to or even some consideration

of race. See Alexander, 602 U.S. at 37. Under this Court’s precedent, such evidence is

insufficient for a plaintiff to obtain relief; under the decision below, however, this

would defeat the “exclusively partisan” purpose of redistricting and therefore entitles

a plaintiff to a preliminary injunction.

Furthermore, the majority’s purity test ignores the political reality of

redistricting. The court never paused to ask why the Texas Legislature—which is

inherently political—would draw districts based on race rather than party, when

partisan votes are what secure seats in the U.S. House. By demanding proof of

“exclusively partisan” motivation, App.79, the majority fell hook, line, and sinker for

an openly cynical attempt to fit the square peg of partisan mapmaking into the round

hole of racial discrimination.

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All told, the majority below required Texas to satisfy an impossible purity

test—one this Court has already rejected. Combine that ultra-strict purity test with

the majority’s dramatically watered down standard for obtaining a preliminary

injunction (discussed above)—and voila the court was able to conjure a basis for a

preliminary injunction based on a record woefully short of satisfying this Court’s

requirements for enjoining an act of a State legislature as racist.

II.

The Remaining Stay Factors Decisively Favor Texas.

When considering a stay, the Court examines the irreparable harm to the

applicant and the balance of equities, noting that the harm to the opposing party and

the public interest “merge when the Government is the opposing party.” Nken, 556

U.S. at 435. Here, the balance tilts sharply in favor of Texas, as the injunction inflicts

per se irreparable harm on the State’s sovereignty and causes chaos in an election

already underway.

A.

The Injunction Inflicts Irreparable Harm on State Sovereignty.

A State suffers a unique, irreparable injury “any time” its laws are enjoined

because it is precluded “from effectuating statutes enacted by representatives of its

people.” Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers)

(cleaned up). In the context of redistricting, this harm is particularly acute because

the “inability to enforce its duly enacted plans clearly inflicts irreparable harm on the

State.” Abbott v. Perez, 585 U.S. 579, 602 n.17 (2018).

The injunction below did not make a few tweaks along the edges. It enjoined

the entire 2025 congressional map for the State of Texas and resurrected a repealed

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2021 map. This fundamentally interferes with a core legislative function,

contradicting the principle that “reapportionment is primarily a matter for legislative

consideration and determination” and that “a district court should not pre-empt the

legislative task.” White v. Weiser, 412 U.S. 783, 794–95 (1973) (quotation marks

omitted); see also Growe v. Emison, 507 U.S. 25, 34 (1993).

Judicial restraint in these circumstances is constitutionally mandated. As this

Court recently reaffirmed, the Elections Clause “expressly vests power” to regulate

federal elections in the state legislature—“a deliberate choice that this Court must

respect.” Moore v. Harper, 600 U.S. 1, 34 (2023). While courts retain the power of

judicial review, they “do not have free rein” to “arrogate to themselves the power

vested in state legislatures.” Id. at 34, 36. Yet the panel below did just that. By

discarding the State’s enacted 2025 map and imposing a map the Legislature

explicitly repealed, the panel “exceed[ed] the bounds of ordinary judicial review” and

“intrude[d] upon the role specifically reserved to state legislatures by Article I,

Section 4.” Id. at 37.

The disruptive effect of this judicial intervention outweighs any alleged harm

to Plaintiffs. “The purpose of … interim equitable relief is not to conclusively

determine the rights of the parties, but to balance the equities as the litigation moves

forward.” Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017) (citation

omitted). The public interest favors the stability of duly enacted state laws and the

presumption of legislative good faith. Alexander, 602 U.S. at 6.

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B.

The Eleventh-Hour Injunction Disrupts Ongoing Elections.

The majority opinion below concluded that “[a]n injunction in this case would

not cause significant disruption.” App.144. Nothing is further from the truth. As

Texas details in its Application, the district court’s injunction violates the Purcell

principle by injecting profound confusion into an election cycle already well

underway.

This Court has long recognized that “[c]ourt orders affecting elections … can

themselves result in voter confusion and consequent incentive to remain away from

the polls.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006). Accordingly, the Purcell

principle dictates that “federal courts ordinarily should not enjoin a state’s election

laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 880 (2022)

(Kavanaugh, J., concurring in grant of applications for stays). As Justice Kavanaugh

emphasized, “When an election is close at hand, the rules of the road must be clear

and settled. Late judicial tinkering with election laws can lead to disruption and to

unanticipated and unfair consequences for candidates, political parties, and voters,

among others.” Id. at 880–81.

The district court flatly ignored this admonition by waiting until November

18—ten full days after the candidate filing period opened on November 8—to issue its

injunction. Emergency.Appl.for.Stay.2. For months beforehand and in the days

leading up to candidate filing, the 2025 map was the operative law. Candidates

necessarily relied on those district lines to make critical, often irrevocable decisions.

The injunction upends these reliance interests by changing the boundaries of nearly

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all of Texas’s 38 congressional districts. This chaos, occurring mere weeks before the

December 8 filing deadline, strongly counsels in favor of a stay.

The majority tried to deflect these concerns by saying this sizable disruption

“is attributable to the Legislature, not the Court.” App.146. But that makes little

sense. As Judge Smith correctly noted, the “duly enacted [2025] Texas congressional

districting map is the ‘status quo.’” App.180 (Smith, J., dissenting). It is the map

under which the election cycle began. The court decision below—not that of the

legislature—is obviously what has disrupted the status quo. As Justice Kavanaugh

explained, “It is one thing for a State on its own to toy with its election laws close to

a State’s elections. But it is quite another thing for a federal court to swoop in and redo a State’s election laws in the period close to an election.” Milligan, 142 S. Ct. at

881.

III.

The Court Should Stay the Decision Below Pending the Outcome of

Callais.

The majority opinion does not even mention that this Court has noted probable

jurisdiction in Louisiana v. Callais, No. 24-109, a case argued this Term that directly

confronts the constitutional boundaries of race-conscious redistricting. Callais

squarely presents the question of “[w]hether the State’s intentional creation of a

second majority-minority congressional district violates the Fourteenth or Fifteenth

Amendments to the U.S. Constitution.” Suppl.Br.for.Appellant.Louisiana.i, Callais,

No. 24-109 (Aug. 27, 2025).

The resolution of Callais will likely clarify, if not fundamentally reshape, the

legal framework governing Plaintiffs’ claims against Texas. The appellants in Callais

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argue that the Constitution mandates color-blindness, asserting that race-based

redistricting, even in the name of Voting Rights Act compliance, is unconstitutional

and violates the principle that “[e]liminating racial discrimination means eliminating

all of it.” Id. at 2 (quoting Students for Fair Admissions, Inc. v. President & Fellows

of Harvard Coll., 600 U.S. 181, 206 (2023)). Louisiana contends that the current

jurisprudence forces sovereign States into a no-win, goldilocks scenario where they

must consider race but “perennially suffer the indignity of … being sued for

considering race too much or too little,” putting the federal judiciary in the position

of having to “pick winners and losers” in this racial calculus. Id. at 2.

Texas is caught in this precise predicament. The majority opinion below

invalidates the State’s 2025 map, concluding that the Texas Legislature’s actions

constituted impermissible racial gerrymandering. App.2–3. Texas maintains its

actions were driven by permissible partisan objectives. Emergency.Appl.for.Stay.1.

As Judge Smith’s dissent below aptly explained, this “tension between Section 2 of

the Voting Rights Act and racial-gerrymandering jurisprudence” will likely be

resolved by Callais. App.173 (Smith, J., dissenting).

But the majority ignored this pending sea-change and proceeded with the

drastic remedy of reshaping Texas’s 38 congressional districts at the eleventh hour,

based on a highly dubious finding of racial predominance derived from a legal

framework this Court is actively re-examining.

Judicial prudence dictates that a stay is warranted to allow this Court to

provide the clarity that States “desperately need” before a duly enacted map is

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enjoined based on unstable precedent. Suppl.Br.for.Appellant.Louisiana.5, Callais,

No. 24-109.

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CONCLUSION

The Court should grant the Application.

November 24, 2025

Respectfully submitted,

R. TRENT MCCOTTER

Counsel of Record

TAYLOR M. MYERS*

WALKER FORTENBERRY^

BOYDEN GRAY PLLC

800 Connecticut Ave. NW

Suite 900

Washington, DC 20006

(202) 706-5488

tmccotter@boydengray.com

DANIEL Z. EPSTEIN

AMERICA FIRST LEGAL FOUNDATION

611 Pennsylvania Ave. SE #231

Washington, DC 20003

Counsel for Amicus Curiae

* Admitted only in Maryland;

^ admitted only in Alabama.

Practice supervised by D.C. Bar

Members.

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