On Monday the Supreme Court heard oral arguments in Louisiana v. Callais, a case on the claimed racial gerrymandering of Louisiana's congressional map.
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NewsTranscript
00:00:00not be caught between two parties with diametrically opposed visions of what our congressional
00:00:05map should look like.
00:00:07But this has become life as usual for the states under this court's voting cases.
00:00:12And our fundamental question today is how do we get out of this predicament?
00:00:17Now I think there are at least three ways to do that.
00:00:19First, you should reverse on standing grounds because the only theory of harm in the red
00:00:23brief is that our black representative of District 6 will play into racial stereotypes
00:00:29by favoring the black voters of District 6.
00:00:32Second, you should reverse on racial predominance because the District Court wrongly assumed
00:00:37that our intentional creation of a majority black district in light of the Robinson decisions
00:00:43automatically established racial predominance.
00:00:46And third, you should reverse on the good reasons inquiry because the District Court
00:00:51wrongly in our view believed that the Robinson decisions play no role in the strong basis
00:00:56in evidence inquiry.
00:00:58And in the end, I want to emphasize that the larger picture here is important because
00:01:01in an election year, we faced the prospect of a federal court drawn map that placed in
00:01:07jeopardy the Speaker of the House, the House Majority Leader, and our representative on
00:01:11the Appropriations Committee.
00:01:13And so in light of those facts, we made the politically rational decision.
00:01:17We drew our own map to protect them.
00:01:20This court's breathing room precedents allow that decision.
00:01:23I welcome the court's questions.
00:01:25So as I understand your argument, you accept, we are to accept that the courts, the Robinson
00:01:32court required that there be two districts and that your only interest is in preserving
00:01:38two incumbents in Northeast Louisiana.
00:01:43That's correct, Your Honor.
00:01:44I mean, we have two Article 3 court decisions that say the VRA likely requires Louisiana
00:01:49to draw a second majority black district.
00:01:52Those were the facts presented to us.
00:01:53In light of those decisions, we said, well, we can't allow the federal court to draw the
00:01:58Robinson illustrative maps because that would have placed Julia Letlow in a majority Democrat
00:02:02district.
00:02:03And so we took matters into our own hands and said, we're going to protect our most
00:02:06high profile incumbents, draw our own map that ensures that Speaker Johnson and Representative
00:02:12Letlow remain in Congress.
00:02:15So in order for us to use that line, wouldn't we have to accept that the district court
00:02:22was right, the Robinson court was correct?
00:02:27Your Honor, I think the way this case has been litigated, the way it comes to the court,
00:02:31the plaintiffs have not put on a pseudo VRA case to say that the Robinson courts were
00:02:35wrongly decided.
00:02:36I mean, of course, as you know, in the Robinson litigation, we took the position that we should
00:02:40have prevailed.
00:02:41We lost.
00:02:42We lost on those arguments.
00:02:44And at the end of the day, I think in the strict scrutiny analysis that this court's
00:02:47cases set out, the question is, do we have a good reason in relying on what the federal
00:02:52courts told us that the VRA likely required?
00:02:55And I think that's the fundamental error.
00:02:57If you look at pages 53A to 66A of our JS appendix, that's the district court's good
00:03:02reasons analysis.
00:03:03It says not one word about the Robinson decisions.
00:03:07And with all with all respect to the district court, I think that's not how the good reasons
00:03:11inquiry runs.
00:03:12I mean, I think fundamentally, when you have Article three courts telling you that this
00:03:16is what the VRA likely requires, a rational state is going to run with exactly what the
00:03:21federal court says.
00:03:22We're in the business of complying with federal court decisions.
00:03:25And when they told us that we needed to draw a second majority black district, that's what
00:03:29we did.
00:03:30And I want to go back to the larger context, because I think that's the important factual
00:03:33backdrop here, which is we're in an election year.
00:03:36It's 2024.
00:03:37The Fifth Circuit, if you look at page 601 of its decision, the Fifth Circuit says you
00:03:41have a few weeks to now that we have affirmed the district court's likelihood of success
00:03:45in the merits finding, you have two weeks, a few weeks to go back, consider drawing your
00:03:50own map.
00:03:51And it's an election year.
00:03:52We're talking about the Speaker of the House.
00:03:54No rational state gambles with those high stakes seats in that situation.
00:03:58And our request to this court is to say, well, given that unique circumstance where you have
00:04:03two layers of Article three courts telling a state what the VRA likely requires, that
00:04:08is a good reason for the district for the for the state to do what it did.
00:04:12Well, I mean, do you think the Robinson court was correct?
00:04:15Your Honor, you know, in our heart of hearts, we've never shied away from our position in
00:04:20the Robinson decisions, which is that we should have prevailed at the end of that litigation
00:04:24in the preliminary injunction stage we lost.
00:04:27And so we face a choice.
00:04:28Do we take a gamble and go to trial, lose at final judgment, endure a court drawn map
00:04:33and hope that an appellate court will then step in on the back end of the process and
00:04:37save us from the federal court drawn map?
00:04:40Or do we say that the court said what they said, what the VRA likely requires?
00:04:44Can we work with that and find a way to save our incumbents on our own?
00:04:47And so, Your Honor, you know, I I'm not going to stand here and say that the Robinson courts
00:04:51were right.
00:04:52But I will say that what is set in stone is what they said.
00:04:55That is the law.
00:04:56And we took that as gospel and went back to the drawing board and drew District six.
00:05:01One of the arguments that the appellees raise is that there's a durational limit on the
00:05:09authority of Section two to force states to create additional majority minority districts.
00:05:15I think that's pages thirty six to thirty eight of the appellees brief.
00:05:21I know that the state of Louisiana in separate litigation is taking exactly that same position
00:05:27as I understood it and read it.
00:05:29And I'm wondering what you think we should do with the appellees argument about the durational
00:05:35limit here.
00:05:36Sure.
00:05:37A couple of things, Justice Kavanaugh.
00:05:39The first thing I think you do is you disregard it because until the red brief plaintiffs
00:05:43in this case never disputed this court's assumption that compliance with the VRA is a compelling
00:05:48interest.
00:05:49So I think that part of the brief where they talk about what we're arguing in another case,
00:05:52that's really beside the point here because they forfeited that compelling interest argument.
00:05:56But on the merits, absolutely.
00:05:58In the Nairn case, our position is that in Louisiana, at least as applied to Louisiana,
00:06:03Section two is unconstitutional.
00:06:04The reality today is we've lost that argument so far and, you know, we are duty bound to
00:06:09comply with the VRA and especially in this context where you have federal court decisions
00:06:13telling us what the VRA likely requires.
00:06:16I don't think there's any serious argument that that is not a compelling interest, that
00:06:20we do not have a compelling interest in complying with the federal courts have told us.
00:06:24And that's separate litigations now in the Fifth Circuit.
00:06:26Is that correct?
00:06:27It's in the Fifth Circuit.
00:06:28In the Nairn case, the Fifth Circuit panel heard oral argument in January.
00:06:32That issue may well be before this court.
00:06:34The ultimate unconstitutionality issue may well be before this court this fall.
00:06:38But at least as things stand now, we're duty bound to comply with the Voting Rights Act.
00:06:42And when a district court and a panel in the Fifth Circuit say the Voting Rights Act likely
00:06:46requires you to adopt a second majority black district, we're going to do that, Justice
00:06:51Kavanaugh.
00:06:52What if the Robinson decision were plainly wrong but say it didn't apply Gingles at all?
00:07:00Would you still have a good reason to follow it?
00:07:03No, Justice Alito.
00:07:04And I think that goes to, I know the United States withdrew its brief in this case, but
00:07:08I think that's the sort of unusual circumstance that provides a very, very narrow exception
00:07:12to our position, which is you can imagine an extreme case where the VRA courts just
00:07:17wildly got the law wrong, got the facts wrong, and nobody, as an objective matter, nobody
00:07:23would agree that that was a circumstance where a state could reasonably rely on those decisions.
00:07:29What if it weren't wildly wrong?
00:07:31They didn't just ignore Gingles, but it's wrong.
00:07:35You look at it, and it's wrong.
00:07:37They misapplied something.
00:07:39And Your Honor, I think that the less wildly wrong the decision becomes, I think the harder
00:07:44it is for a plaintiff like plaintiffs in this case to come in on the back end in an Equal
00:07:48Protection Clause case and say, we should just relitigate what happened in the VRA litigation
00:07:53all over again.
00:07:54And that didn't happen in this case.
00:07:56I mean, nothing prohibited plaintiffs from coming to the district court and putting in
00:08:00all the evidence to say, like, if you actually look at what was in the record in Robinson,
00:08:04flat wrong, you should just relitigate what happened in the Middle District and the Fifth
00:08:07Circuit.
00:08:08They didn't do that.
00:08:09I think that option is available to plaintiffs in a future case.
00:08:14I'm sorry.
00:08:17You're saying in this case, they didn't argue Robinson was wrong?
00:08:21Your Honor, they didn't put in any evidence to relitigate the Robinson issue?
00:08:26Justice Sotomayor, they did not put on the full panoply of evidence that was in the Robinson
00:08:30litigation.
00:08:31They say you bear that burden.
00:08:32Your Honor, our burden was to show that we had a good reason for enacting District 6.
00:08:37And our position is that you have two Article III court decisions that go through the Robinson
00:08:44plaintiff's likelihood of success on the merits.
00:08:46That itself is based on the evidentiary record in the Robinson litigation, almost 400 docket
00:08:51entries in the district court in the Middle District.
00:08:53I'm taking a step back, OK?
00:08:57If they had said that Robinson was wildly wrong, they would have relitigated in front
00:09:03of the district court based on the very voluminous district court decision.
00:09:09It was over 150 pages filled with the arguments on both sides, right?
00:09:15That's exactly right, Your Honor.
00:09:16What they came in and said and said was, merely because you were trying to comply with Robinson,
00:09:25that showed you let race predominate, correct?
00:09:28That's correct, Justice Sotomayor.
00:09:30So their approach wasn't saying relitigate Robinson.
00:09:33They're just saying that's not a compelling state interest.
00:09:36That's correct, Justice Sotomayor.
00:09:37And our position here is that can't be right.
00:09:39I mean, this court has never seen a set of circumstances where you have federal courts
00:09:42telling a state, this is what the law likely requires of you.
00:09:47And then—
00:09:48But we do have at least three cases that say you don't have to be right on whether you
00:09:52needed to comply with Title II.
00:09:55You just have to have a good faith basis, correct?
00:09:58That's right, Your Honor.
00:09:59You have a case, for example, you look at a case like Bush v. Vera, a case that says
00:10:03the state doesn't have to draw the precise compact district that a VRA court ordered
00:10:07on.
00:10:08Or you look at a case like Bethune Hill that says a state doesn't have to show that it
00:10:11would have lost at trial but for its use of race.
00:10:14I mean, that's the sort of breathing room and flexibility that this court's cases bake
00:10:19into the analysis.
00:10:20Now, we have at least three cases that have said, unlike what the district court said
00:10:26here, the district court said that the reason why race predominated is because you decided
00:10:32to comply with Section II, correct?
00:10:35That's correct, Your Honor.
00:10:36And in at least three cases, we've said that's not the starting proposition, correct?
00:10:41That's correct, Your Honor.
00:10:42One of them, Bethune Hill.
00:10:47That's correct.
00:10:48This court has said—
00:10:49But we have said that once you try to comply with Section II, that the new map you create
00:11:00has to substantially address the likely Section II violation.
00:11:06That's correct, Your Honor.
00:11:07All right.
00:11:08How does the map that you enacted do that?
00:11:11We know the Robinson map was more compact, followed more traditional criteria than the
00:11:17legislature's first created map, okay?
00:11:22So we know that that would have resolved the Section II violation using traditional criteria.
00:11:30One of their arguments here and one that the district court pointed to, but wait a minute,
00:11:34this map's different, and it doesn't fit all the criteria.
00:11:39So how do we say that that follows our guidance?
00:11:48Mr. Chief Justice, may I answer?
00:11:50Certainly.
00:11:51So, Justice Sotomayor, I think you begin with the Robinson illustrative maps as a baseline,
00:11:55and you ask how closely does the state's enacted map approximate what the Robinson
00:12:00illustrative map looked like and did.
00:12:03And then if it deviates, you ask that substantially addresses question, well, why did the state
00:12:07deviate, and did it deviate so much that the state's map doesn't actually substantially
00:12:12address the baseline violation identified in Robinson?
00:12:16And the reason, the answers to those questions in this case, the only reason we deviated
00:12:20from the Robinson illustrative map is to protect our high-profile incumbents.
00:12:24And then the substantially—
00:12:25Both maps created seven voting districts, correct?
00:12:30We have six districts, correct, Your Honor.
00:12:32I'm sorry.
00:12:33Both maps created two majority black districts.
00:12:34Both maps created two majorities, but both of them relied on the same district, having
00:12:38the same number of districts.
00:12:40That's correct, Your Honor.
00:12:41And 70% of District 6's, which was 70% of the Robinson map, correct?
00:12:50District 6?
00:12:51That's correct, Your Honor.
00:12:52The very core of District 6 is the very core of the Robinson illustrative maps.
00:12:57We have also said very clearly that if two reasons coexist, race and politics, that 50-50
00:13:08means that race doesn't predominate, correct?
00:13:11That's what this Court's precedents say, Your Honor.
00:13:14Thank you, Counsel.
00:13:15Justice Thomas?
00:13:16Justice Alito?
00:13:17Okay.
00:13:18Justice Kavanaugh?
00:13:19What's the limit on that, in terms of your answer to Justice Sotomayor—50%, 40%, 30%—and
00:13:33what kind of guidance do you think we could give, because one of the legitimate concerns
00:13:39of your brief and the amicus briefs are to give clearer guidance.
00:13:44What do you think the limit is on taking the political considerations into account in fashioning
00:13:50a remedial district that substantially addresses the violation?
00:13:55Well, I think one of the limits, Justice Kavanaugh, is numerical, right?
00:13:58I mean, in Shaw 2, the Court said that a 20% overlap was insufficient.
00:14:02In LULAC, less than 50% was insufficient.
00:14:06Here we're in the neighborhood of 70%, so I think as a numerical matter, that's going
00:14:10to be one pretty clear guidepost for the lower courts on how closely a state is approximating
00:14:16the illustrative map.
00:14:18And I think the other thing is just to really assess why the state deviated from the baseline
00:14:23map.
00:14:24And I think that's one of the things where I don't know that there's any dispute in
00:14:26this case on both sides why we didn't adopt SB 4, we adopted SB 8.
00:14:32The sole reason, in Senator Womack's own statements, is SB 8 was the only map that
00:14:36would protect our high-profile incumbents.
00:14:39So the rule I think you want is political considerations are fine to take into account
00:14:43in doing the map, the second map, in 50s, kind of a floor on that?
00:14:51I think so.
00:14:52I mean, this Court has never spelled out what substantially addresses means as a numerical
00:14:56matter.
00:14:57And to my mind, if I'm between 60% and 80%, I think that's substantial, but obviously
00:15:01a judgment call for this Court.
00:15:03Ms. Stewart?
00:15:04I just want to be sure I understand your question to Justice Alito.
00:15:07Justice Alito asked you, you know, if the Robinson decision was patently wrong, could
00:15:12it still be a good reason?
00:15:14And you said, well, you know, if it was patently wrong, no, but we were obeying the federal
00:15:19court orders.
00:15:20This wasn't patently wrong.
00:15:21What is the point at which?
00:15:22Because it's an odd situation, right, where the later district court has to essentially
00:15:27take as preclusive the earlier district court's determination of the Section 2 violation,
00:15:31right?
00:15:32So it's not entirely preclusive because you left room for the later court to say, well,
00:15:38that was patently wrong, so we're not going to follow it.
00:15:40What is the line?
00:15:41So I think there are two ways in which it's not automatically preclusive, Justice Barrett.
00:15:45I think the first is, regardless of what the earlier court decisions say, when the state
00:15:50acts, it has to substantially address the baseline violation.
00:15:54So that's one way in which, if we fail to do that, if we adopted an SB 8 map that had
00:15:58only 20 percent overlap with the Robinson illustratives, then that's one way in which
00:16:02the VRA decisions are not preclusive here.
00:16:04We lose this case.
00:16:05I think the other way, and I think this is what your question was getting at, is that
00:16:10in the wildly wrong case, you know, I think we just can't dispute that there may be some
00:16:17case where, objectively, on both sides of the aisle, everybody agrees that the court
00:16:21just got the law on the facts wrong.
00:16:23I think that's a case we have to give up, and we're happy to give it up.
00:16:26But barring that case, when a federal court, two federal courts, tell a state what the
00:16:31law requires, to me, that means that there should be a very, very high bar in this court's
00:16:36precedence for second-guessing what those federal courts say.
00:16:40And I think you just leave that hypothetical out there as a potential odd case that may
00:16:44never arise, but we acknowledge that, you know, it is out there.
00:16:47I mean, is it also because of the position that it puts the state in here?
00:16:51I mean, it's not just a matter of your obedience to the federal court order, which I appreciate.
00:16:55You know, you would be obedient to the federal court order.
00:16:57But it's also that if you had continued to litigate the Robinson, if you had continued
00:17:02to litigate in Robinson, you risked having the court-imposed map.
00:17:06And so it's really your litigation risk that's part of the calculus here?
00:17:10That's one risk, Your Honor.
00:17:11I think it's both litigation risk and political risk.
00:17:12Because remember, if you look at page 601 of the Fifth Circuit's decision, they say,
00:17:16now that we have affirmed the district court on the merits, we don't doubt that the legislature
00:17:20might want to take this opportunity to draw a new map now.
00:17:24And here's a deadline, January 15th, 2024.
00:17:27You call that litigation risk, you can call that political risk, whatever it is, it's
00:17:30forcing the state to make a call.
00:17:31It's wrapped up together.
00:17:32Yeah.
00:17:33That's correct.
00:17:34If you're going to lose, then you risk that the district court's going to impose a map
00:17:37on you.
00:17:38That's exactly right, Justice Barrett.
00:17:40Okay.
00:17:41Justice Jackson?
00:17:42So can I just clarify, there's no dispute that the court's order was the reason that
00:17:48Louisiana did this, did the new map, right?
00:17:52Mr. Grime can correct me if I'm wrong, but I don't think so, Your Honor.
00:17:55And the question is whether or not the fact that you had a court order was a good enough
00:18:00reason for you to do it?
00:18:01Is that what you understand the basic question to be?
00:18:05That's correct.
00:18:06Not just one order, but two layers of orders, yes, Your Honor.
00:18:08And I guess I'm still a little confused as to why it matters whether the court order
00:18:13was right or not.
00:18:15You were still being compelled by the court to do what you did in this case, correct?
00:18:23That's correct, Justice Jackson.
00:18:24And I guess all I was trying to—the point I was trying to drive home is that you could
00:18:28imagine—and I think that's why the United States Withdraw and Breathe calls it an unusual
00:18:31circumstance where, like, the VRA decisions were just wrong, just plainly wrong, and nobody
00:18:36would rely on them.
00:18:38But this is nowhere close to that, and I—you know, it may well be that this court never
00:18:41sees a situation where that's sort of wildly—
00:18:44But I guess that hypothetical invites us to even engage in a question, you know, an inquiry
00:18:52as to whether or not this was a wildly wrong case, and I'm just worried about that as
00:18:57a way of going about handling this sort of situation.
00:19:01I mean, Justice Barrett points out that we have a prior court order, you say, and it's
00:19:07clear that it was affirmed by the Fifth Circuit, that to a certain extent it is preclusive
00:19:13on the facts of whether or not there's a likely VRA violation here, and having a likely
00:19:20VRA violation is all that was necessary for the state to take the steps that it did.
00:19:27So I just don't know that we need to even engage in the thought process of, what if
00:19:33the court order was wrong?
00:19:34I mean, it existed.
00:19:36And if it existed, then it seems to me that there is a good reason for Louisiana to have
00:19:42followed it.
00:19:43I think—
00:19:44Yeah.
00:19:45I think that's exactly right, Justice Jackson, and that's why—that may well be the Unicorn
00:19:49case, the Unicorn case that says, you know, black is green.
00:19:52Nobody, like, objectively agrees with that, but that case may also never arise.
00:19:56Let me ask you about substantially addressed the violation.
00:19:59Was that something that the district court addressed in this case?
00:20:03I didn't see that as part of its analysis, and isn't that another basis for finding
00:20:08error here?
00:20:09It did not, Your Honor.
00:20:10And yes, that is an independent legal ground for finding error, and that's why I pointed
00:20:14the court to, if you look at pages 53A to 66A of our JS appendix, that's the good reasons
00:20:19analysis, and you see nothing about Robinson there.
00:20:22You see nothing about the Robinson illustrative maps.
00:20:25With all due respect, that factual background is what explains SB 8, and so you can't assess
00:20:31the legality of our map without referring, as a baseline, to the comparison against the
00:20:36Robinson litigation.
00:20:41Thank you, counsel.
00:20:42Mr. Nathie?
00:20:43Mr. Chief Justice, and may it please the court.
00:20:50This court has been clear that states have breathing room to take reasonable efforts
00:20:55to comply with the Voting Rights Act, and they may also balance the many other interests
00:21:00that enter the redistricting calculus.
00:21:03And so it was perfectly appropriate, after two federal courts had found that Louisiana
00:21:07had likely violated section two, that the state sought to comply with those rulings,
00:21:12and that it exercised its authority to protect favored incumbents and unite preferred communities
00:21:19of interest.
00:21:20And accounting for those kinds of political considerations is squarely the legislature's
00:21:24prerogative.
00:21:26And breathing room ensures that courts don't unnecessarily intrude on the legislative domain
00:21:32simply because the state is attempting to comply with the Voting Rights Act.
00:21:36But the district court did exactly that in finding that the state's chosen remedy for
00:21:40the violation shown in Robinson was unconstitutional, and it committed three errors in doing so.
00:21:48First, it treated the intent to comply with the Voting Rights Act as inherently suspect.
00:21:54Second, it dismissed Robinson as a good reasons for the state to engage in remedial districting.
00:22:01And third, it demanded that the state's chosen remedy maximize compactness and compliance
00:22:08with traditional redistricting principles, even when that precluded the state achieving
00:22:13its political objectives.
00:22:16Those errors denied the state the flexibility to make political judgments, balance competing
00:22:22interests, and comply with federal law.
00:22:25And so we ask the court to reverse the decision below, and I welcome the court's questions.
00:22:30Could you take a minute or so and describe exactly what the underlying Voting Rights
00:22:35Act violation was?
00:22:37Absolutely, Your Honor.
00:22:38And how it was remedied.
00:22:39Yes, the district court in the Robinson case looked at the history, looked at the history
00:22:44of discrimination, looked at modern instances of discrimination.
00:22:46It found that there were extreme disparities in the black communities in the region around
00:22:54Baton Rouge and to St. Landry Parish and into other parishes, also in the Delta region,
00:22:59which was drawn into our illustrative maps.
00:23:02So it looked at that history.
00:23:03It found that based on that, those conditions, current conditions, not just history, but
00:23:09current conditions, that black voters in Louisiana had less opportunity to elect candidates of
00:23:15choice than other voters.
00:23:18And so it looked at the totality of the circumstances.
00:23:20It found that there was a compact, a compact map could be drawn and that race did not predominate
00:23:26in the illustrative maps.
00:23:28And therefore it found, and it looked at the polarization and it found that Section 2 had
00:23:34likely been violated.
00:23:35Counsel, what do we do about the fact that Robinson 1 was just litigated through a preliminary
00:23:40injunction?
00:23:42And I understand that the court has suggested that there's a compelling interest in abiding
00:23:48Section 2, but here we don't have a final judgment.
00:23:54That's a little, little, little awkward to say that a preliminary injunction, which even
00:23:58in the existing litigation has no binding effect going forward, right?
00:24:03I mean, you get a PI, you can lose on the merits, happens all the time, right?
00:24:09So what do we do about that?
00:24:11Well, I think first, Your Honor, that this court has found good reasons on much less
00:24:17than that.
00:24:18It's found good reasons based on, you know, legislature's analysis of past election results
00:24:23on demographics of districts and turnouts.
00:24:25No, I understand that.
00:24:26But here it's based on a court action.
00:24:29But the court action was preliminary.
00:24:31It was preliminary in a very formal sense, but the record in Robinson was very robust.
00:24:38It was a five-day evidentiary hearing.
00:24:40The court heard from 21 witnesses.
00:24:43There were hundreds of exhibits and the court made a reasoned decision based on that record
00:24:48and not only was it the district court's decision, but that decision was then affirmed by the
00:24:52Fifth Circuit with the benefit of this court's decision in Milligan that found that the district
00:24:58court had correctly identified a likely violation of Section 2.
00:25:03And so under any circumstances that, you know, under this court's precedent, that's more
00:25:07than enough to find good reasons for the state to engage in remedial redistricting.
00:25:11Well, it was not only a preliminary injunction.
00:25:14It was a preliminary injunction that was vacated by the Fifth Circuit because there was no
00:25:21longer any irreparable harm at the time when the Fifth Circuit decided the appeal.
00:25:27And the Fifth Circuit said, you know, we're not convinced that this is the right result.
00:25:34This will be the right result in the end.
00:25:36Isn't all that true?
00:25:39Well, not all of it, Your Honor.
00:25:40First, the Fifth Circuit said that the harm is still present.
00:25:44So it was the balance of the equities really that was the basis for vacating the injunction.
00:25:50You can see that in the Fifth Circuit.
00:25:52All right.
00:25:53But it's a vacated preliminary injunction.
00:25:55It's vacated, yes, Your Honor, on the balance of the equities.
00:25:58But the Fifth Circuit very clearly affirmed the merits of the district court's decision,
00:26:03its determination that the plaintiffs were likely to prevail on the merits.
00:26:09Why is this situation different from the situation in Miller, which I don't think you discuss
00:26:15in your brief, where the state said, we adopted this map because that was required to get
00:26:23preclearance from the Justice Department, and the court just blew right past that.
00:26:29So what's the difference?
00:26:30I think there's a very big difference, Your Honor, between the Justice Department making
00:26:34a pre-litigation assessment about what Section 5 requires, which in Miller the court made
00:26:39clear would be subject to judicial oversight, and an Article III court in an adversarial
00:26:46setting looking at the evidence and making a determination that Section 2 has likely
00:26:50been violated.
00:26:51Well, I come back then to the question I asked Mr. Aguiñaga.
00:26:56What if the underlying decision, what if the district court decision is wrong?
00:27:01What if you read it and you say this is wrong?
00:27:04It applied the wrong standard.
00:27:06I think, Your Honor, if there were some unusual circumstance like that, and then you'd also
00:27:10maybe want to look at why did the state not defend it if it was so wrong, you know, unusual
00:27:16circumstances like collusion, like a responsible official's failure to defend a map, which
00:27:21does happen from time to time, then you might look with more skepticism at the decision
00:27:26itself.
00:27:27Well, why isn't this a situation where if you look at the face of the decision, it's
00:27:30wrong?
00:27:31It doesn't just summarize what the middle district judge held, and it was wrong.
00:27:40Under LULAC, it's wrong.
00:27:41The question is whether there is a minority, whether there is a minority population that
00:27:49is sufficiently compact to be included in a district that sufficiently respects traditional
00:27:58districting lines, not whether once you've identified bits of minority population, it
00:28:06is possible to draw a district that's compact.
00:28:10That's contrary to what LULAC said, but that's what the middle district said, and it's what
00:28:16you just said in summarizing what they held.
00:28:19Well, absolutely, Your Honor.
00:28:20The standard is, is the minority population sufficiently compact to form the majority
00:28:24in a reasonably configured district?
00:28:26We said that in Allen, didn't we?
00:28:28That was pretty recent.
00:28:29That was last year, two years ago, whatever.
00:28:31Absolutely, Your Honor.
00:28:32We said it in Wisconsin legislature.
00:28:35Sufficiently large and compact to constitute a majority in a reasonably configured district.
00:28:40That's exactly what they did.
00:28:41I mean, LULAC has some language.
00:28:43It actually goes back and forth between the two, but we've repeated now several times,
00:28:49including in our most recent decision, the standard that was used here.
00:28:54Absolutely, Your Honor.
00:28:56The way that standard is typically applied is that if there is a reasonably configured
00:29:01district that is majority-minority, that's the evidence that the minority population
00:29:05is sufficiently compact.
00:29:06How, I mean, if you look at CD6, what does reasonably compact mean?
00:29:13It's a snake that runs from one end of the state to the other.
00:29:16I mean, how is that compact?
00:29:18Well, absolutely, Your Honor.
00:29:20So, CD6 is the remedial district.
00:29:22That was not offered as an illustrative district to prove a Section 2 violation.
00:29:26And states have flexibility when they are drawing remedial districts that a plaintiff
00:29:31in a Section 2 case might not have.
00:29:33We can't draw non-compact districts to prove the Section 2 violation, but once we have
00:29:37shown that...
00:29:38So, in Robinson, they were looking at a totally normal-looking district, right?
00:29:42It was a much...
00:29:43Kind of square, and it's like there's nothing unusual about it.
00:29:47It actually looks like the district that the state went in with, right?
00:29:54Absolutely.
00:29:55It's very similar to the states, the CD5 in the original map enacted in 2022.
00:30:02And so, that's the evidence...
00:30:04It performed better on traditional criteria.
00:30:06The Robinson map performed better on traditional criteria than Louisiana's map, correct?
00:30:14Yes.
00:30:15First map.
00:30:16That is correct.
00:30:17Let me ask you that.
00:30:19You came up with some compact maps.
00:30:21Louisiana chose a snake, as the Chief Justice called it, instead, squiggling from one end
00:30:25of the state to the other.
00:30:27Even if there were good reason for the district court, for equal protection purposes, the
00:30:35state had good reason to draw another district, did it have good reason to draw this district?
00:30:40Well, it had good reason to believe that it had to draw some remedial district.
00:30:44No, I'm spotting that, we're moving past the preliminary injunction stuff, whether they
00:30:49had good reason.
00:30:50I'm asking, is this one narrowly tailored?
00:30:53Is this one the appropriate district?
00:30:54Yes, so the question the court asks there is, does the district that the state drew,
00:30:59the remedial district, substantially address the violation?
00:31:02And that's my question for you.
00:31:03And so, here, as Mr. Aguiñaga explained, the district includes a substantial part of
00:31:11the same population.
00:31:12And the core of the district is identical to the districts that were at issue in Robinson,
00:31:16to our illustrative districts.
00:31:18It's about at least 70% of the population.
00:31:21But geographically, it's wildly different.
00:31:24And so, what do we do about that?
00:31:25Well, I think the geography is not really the issue, because as this court pointed out
00:31:32back in the 60s in Reynolds v. Sims, legislators represent people, they don't represent geography.
00:31:38Yeah, but districting is supposed to take into account, I mean, we're going to go around
00:31:42a tree, I suppose, but districting is also supposed to take into account compactness
00:31:47and contiguity, sorry, and traditional districting principles.
00:31:54And this one, you didn't propose this district.
00:31:57No, we did not propose this district, but we believe the district remedies the violation,
00:32:02because it includes most of the population from the illustrative districts.
00:32:05And states are not constrained.
00:32:07This court has said repeatedly that states don't have to draw the compact districts that
00:32:12a court would impose.
00:32:13They can take other considerations into account, including political ones.
00:32:17And I'm wondering whether or not we're conflating the standards in a way as we have this conversation.
00:32:22I mean, the original Section 2 violation was established via the map that was compact that
00:32:31you created that showed that another majority-minority district could be drawn.
00:32:39And in response to that, the state, for political reasons, said, we're not going to adopt that
00:32:45map.
00:32:46We need to make a different one in order to reach the goal of remedying this violation
00:32:53because of political reasons.
00:32:55So at that point, I'm wondering whether we are even in a world in which strict scrutiny
00:33:00is applying, because the state's motivation for drawing the squiggly snake map is not
00:33:07race.
00:33:08The state's motivation at that point is clearly politics, because that's what it's saying
00:33:12it's doing, choosing that map over the one that you proposed.
00:33:16So do we even need to get into the analysis about narrow tailoring?
00:33:22Because it seems we've left it because we're now in the world of political map drawing,
00:33:28right?
00:33:29Absolutely, Your Honor.
00:33:30And the line this court has long drawn is between consciousness of race and racial predominance.
00:33:35And that distinction is important to preserving the state's flexibility to account for these
00:33:39kinds of political considerations while also complying with federal law.
00:33:43And what I hear you saying is the reason why we're looking at a snake-like map rather than
00:33:47the compact map is because of political considerations.
00:33:51Politics is the only reason that the state chose that map over the compact maps that
00:33:55were offered in Robinson.
00:33:59Counsel, you said what's important on compactness is where the core of the district is.
00:34:07Well, it's not a question of compactness, Your Honor.
00:34:10It's a question of remedy.
00:34:11Does it remedy the violation that had been shown?
00:34:13This court has never said that states are required to draw compact districts.
00:34:17There's no obligation to draw compact districts if they're not doing it for, you know, if
00:34:23they're not drawing a non-compact district predominantly based on race without an adequate
00:34:26justification.
00:34:27So they can draw compact districts, non-compact districts as a remedy once a violation has
00:34:32been shown.
00:34:33And you think the drawing of this district was not predominantly based on race?
00:34:37I think that—
00:34:38It runs from one side of the state angling up to the other, picking up black populations
00:34:42as it goes along.
00:34:43Well, Your Honor, that was the plaintiff's position.
00:34:46But as the state identified interests, communities of interest that it had joined in that district,
00:34:54in that shape.
00:34:55And if you look at the historians, the Louisiana historians' amicus brief, they explain that
00:35:00there's—it's not by chance that there are significant black populations in that corridor
00:35:05along the Red River.
00:35:06It's a result of history.
00:35:07It's a result of the history of slavery, of Jim Crow, and of the disparities that prevented
00:35:14the lack of economic opportunities that kept people there over generations.
00:35:19And so those ties are still there throughout the district.
00:35:21There are family ties.
00:35:23There are community ties.
00:35:24There are religious ties for—among those communities that are drawn together in that
00:35:28district.
00:35:29And that's part of what the state identified.
00:35:30What the legislature identified was the interests that they were drawing together in addition
00:35:34to the political reasons.
00:35:36So it's not a district that randomly draws together pockets of black population.
00:35:41I think what the chief is trying to get at is certainly politics played a role in this
00:35:45district, but didn't race?
00:35:47Absolutely, Your Honor.
00:35:48The state was trying to draw a district that would remedy the violation that we had shown
00:35:54in—
00:35:55Which is another way of saying race predominated, isn't it?
00:35:57Well, I would disagree with that, Your Honor.
00:35:58I think that race—that means race was one consideration, and this Court has long said
00:36:03in case—
00:36:04Isn't it—I'm sorry.
00:36:05I'm not—I'm sorry, Chief.
00:36:06I'll go ahead.
00:36:07No, no.
00:36:08Go ahead.
00:36:09Well, isn't—isn't saying race was one consideration another way of saying race predominated?
00:36:16And how do we square that with the 14th Amendment's promise that race should play no role in our
00:36:23laws?
00:36:24Well, in the redistricting context, this Court has long recognized that legislators are always
00:36:29aware of race, and the fact that race was one thing they were considering when they
00:36:34drew the map does not mean it was the predominant thing.
00:36:38It means that it was one of many considerations that they had.
00:36:42Politics was another.
00:36:43Communities of interest was another.
00:36:44And without some evidence that would disentangle those things and show that, well, actually,
00:36:49race—among all of those considerations the state was considering, race was the one that
00:36:53actually drove the lines.
00:36:56Race does not—the plaintiffs have not borne their burden to prove that racial predominance.
00:37:02Thank you, Counsel.
00:37:03Justice Thomas?
00:37:05In some of these redistricting cases, the argument is that certain—a certain percentage
00:37:13of the black population is excluded, and you redraw the map to include that population.
00:37:22And what I'm interested in here is exactly what the violation was and exactly how this
00:37:29map solves that or addresses that violation.
00:37:34So the violation was that the map adopted in 2022 dilutes the votes of black Louisianians
00:37:42by denying them an equal opportunity to elect candidates of choice.
00:37:46And the way we showed that was through drawing illustrative districts that included this
00:37:52common core of seven parishes in the center of the state and connecting that with populations
00:37:58in the Delta, which was a similar configuration to the state's map.
00:38:02So ours was sort of a least change map that would remedy the dilution.
00:38:06The state included that same core, and it drew together other different black populations
00:38:14in the district to create a remedial district that would remedy the dilution.
00:38:17And I think in that sense, this case is most like Abbott.
00:38:21In Abbott, the Texas court—or the Texas court had held that there was a Voting Rights
00:38:26Act violation and the state needed to add additional majority-minority districts.
00:38:30The way the state did that was that it drew together some voters in that southwest Texas
00:38:35area where the violation had been proven with other voters in a different part of the state.
00:38:40And this court said that was fine, they did it for incumbent protection purposes.
00:38:45The fact that it was the least compact district in the state was not even part of the analysis
00:38:51because the state had the flexibility to remedy that violation in a way that also advanced
00:38:55its political goals.
00:38:59Justice Alito?
00:39:00Well, let me ask you a question about illustrative District 5 that was before the Middle District
00:39:06of Louisiana in the Robinson case.
00:39:10So that district combined black populations near Baton Rouge and Lafayette in the southeast
00:39:18region of the state with splotches of black populations near Monroe, Bastrop, and Tallulah
00:39:25in the far northeast corner of the state.
00:39:29Now how can the failure to combine these far-distant populations in a map, in a single district,
00:39:40be regarded as the cracking of a concentration of black voters?
00:39:48Well the district court recognized that our illustrative maps were more compact, split
00:39:56fewer parishes than the state's map in creating a new minority black district and that is
00:40:02the...
00:40:03The map scored well on those criteria, but how can that be regarded as cracking?
00:40:11Those populations, the way the effects test under Section 2 works, and again I would,
00:40:16you know, those determinations are, you know, were made in the Middle District in litigation
00:40:22that the state chose not to appeal.
00:40:23So those are not, those have not been part of this litigation.
00:40:27But to answer your question, the way the effects test works is it looks at the way the map
00:40:36is drawn and whether it could be drawn differently so that it would not have those diluted impacts.
00:40:42I understand that.
00:40:43Not only are these populations distant from each other, isn't it the case that they differ
00:40:51in some fundamental respects and therefore may not be part of the same community of interest?
00:40:56The concentration near Baton Rouge and Lafayette are people who live in urban areas.
00:41:04The people who are way up in the northeast part of the state are, live in rural areas,
00:41:12small towns, their values may be quite different, much more religious perhaps than the people
00:41:21down in the other part of the state.
00:41:24Isn't that true?
00:41:25And just last, one last question, don't, doesn't voting in the 2024 election substantiate that?
00:41:35Your Honor, the District Court looked at the evidence of the shared interests, the District
00:41:40Court in Robinson looked at the evidence of the shared interests among these communities
00:41:44that were drawn together in our illustrative districts.
00:41:46That was part of the evidence that we put on.
00:41:48The court heard testimony from lay witnesses.
00:41:50The court heard testimony from expert witnesses about how they identified those shared interests
00:41:54and how they drew the maps.
00:41:57And so the court made a determination that there were shared interests among the black
00:42:01voters that were in that district and that they would be advanced by having an opportunity
00:42:05to elect a candidate of choice.
00:42:06All right.
00:42:08Mr. Bauer.
00:42:09The problem I see is that Louisiana's original 2022 map does exactly what Justice Alito is
00:42:20saying is joining together white voters who don't necessarily have shared interests.
00:42:27Well, Your Honor, it does, it is a similar configuration.
00:42:30So it's a, you know, it does extend from the Florida parishes in the, in the Southeast
00:42:38and then wrap around the, the little, the ankle of the boot and head up to the Delta.
00:42:43So it's a very similar configuration.
00:42:46That's the point, which is what you've done is tie together communities of interest in
00:42:52a different way.
00:42:53Correct?
00:42:54Absolutely, Your Honor.
00:42:55Section one that complies with, complies with section two, but keeps your political
00:43:00needs.
00:43:01Exactly, Your Honor.
00:43:02And that's what the district court in Robinson found.
00:43:04Not your political needs, but Louisiana's political needs.
00:43:09Justice Kagan.
00:43:10If I understand the questions, a couple of my colleagues are asking about, it's really
00:43:13was Robinson right?
00:43:15Not was the decision below right?
00:43:18And as to whether Robinson was right, do you think that we're well positioned in this case
00:43:23to address that issue?
00:43:25I do not, Your Honor.
00:43:26I, I, the Robinson decisions were appealed to the fifth circuit.
00:43:31Six different fifth circuit judges.
00:43:32Yes.
00:43:33One, the one, there was a state panel that looked at the merits and found that the state
00:43:37was not likely to prevail in the appeal and then that was borne out by the merits panel
00:43:40that agreed that the district court had correctly found.
00:43:44We had the opportunity to do something about it at one point.
00:43:47We let it go.
00:43:49Six circuit court judges.
00:43:51As I understand the respondent's argument in this case, the respondents are not standing
00:43:57here.
00:43:58I mean, they might think Robinson was wrong, but their brief is not premised on the idea
00:44:01that Robinson was wrong.
00:44:03Is that correct?
00:44:04That is absolutely correct.
00:44:05Your Honor, the merits of the Robinson decision have not really been part of this litigation
00:44:09at all.
00:44:10Yeah.
00:44:11And the general here was saying, you know, look, they litigated Robinson a lot.
00:44:16They took it to the fifth circuit twice.
00:44:18They litigated it a lot.
00:44:19And like at some point, a state takes its loss and decides that it has to get on with
00:44:26things.
00:44:27And that's exactly what the state here did.
00:44:29Absolutely, Your Honor.
00:44:30The state was not in a position to simply ignore the Robinson rulings.
00:44:33It was not in a position to draw another map that would dilute the votes of the black Louisianians
00:44:39that, you know, whose rights had been violated.
00:44:42And that's a reasonable thing.
00:44:43I mean, if we're, we say all the time, states have to have breathing room.
00:44:47States have to have breathing room.
00:44:49This state used its breathing room to say, after we litigated this, and then we litigated
00:44:53this again, and we knew we were going to lose because six fifth circuit judges had told
00:44:58us so.
00:44:59It was time to get on with things and draw our map that served our political objectives.
00:45:04Absolutely.
00:45:05That's exactly what breathing room provides, that kind of ability for states to take those
00:45:11political calculations into account.
00:45:15Justice Gorsuch.
00:45:16Justice Kavanaugh.
00:45:17Two questions.
00:45:18One general equal protection question, and then a more specific Section 2 question.
00:45:24On equal protection law, we've of course said, and the court's long said, that race-based
00:45:28remedial action must have a logical end point, must be limited in time, must be a temporary
00:45:36matter.
00:45:37Of course, in school desegregation and university admissions.
00:45:41How does that principle apply to Section 2?
00:45:45Your Honor, I think that Section 2, as it has been applied through jingles, is tied
00:45:53to current conditions.
00:45:54It requires a totality of the circumstances analysis that looks at current conditions.
00:45:59It looks at racially polarized voting today.
00:46:02It looks at examples of discrimination today.
00:46:06So it's tied to current conditions, and there doesn't need to be an artificial time limit
00:46:10on how Section 2 would apply, because it's always applied based on current conditions.
00:46:18And second, on the specific questions here, on the race politics, I just want to disaggregate
00:46:26this.
00:46:27My understanding of your position is that the reason that there's a second majority
00:46:32minority district required is because of race, because of Section 2.
00:46:38The choice between which majority minority district to use was made entirely on politics.
00:46:46Is that your position?
00:46:48Yes, that is our position.
00:46:51Justice Barrett?
00:46:53So as your understanding of breathing room, I just want to be sure I understand your answers
00:46:57to Justice Kagan, is your answer to Justice Kagan, your understanding of what breathing
00:47:03room allows a state to do necessarily mean that any time there's a district court order
00:47:08finding a Section 2 violation, that is reason for a 14th Amendment claim to then later lose?
00:47:16Because compliance with Section 2 would always be a reason for the state to draw a race-based
00:47:22district.
00:47:23Your Honor, absent some unusual circumstance like collusion, a decision by an Article 3
00:47:28judge provides about the best reasons that a state can have for thinking it faces Voting
00:47:33Rights Act liability.
00:47:34It's been adjudicated to have likely violated the Voting Rights Act, and this court has
00:47:39said good reasons means that the state has good reasons to believe it faces Voting Rights
00:47:47Act liability.
00:47:48So yes, I would say that when there is an Article 3 judge's determination, in this case
00:47:53affirmed by the Fifth Circuit, that's about the best reasons this court has recognized
00:47:59as requiring remedial action.
00:48:02So let me follow up then on Justice Kavanaugh's question.
00:48:05He pointed out there's two steps here.
00:48:07One, he had to draw a second district based on race, but the shape of that second district
00:48:12was based on political considerations.
00:48:15What if that wasn't the case?
00:48:17What if they didn't like the one imposed by the Robinson map, your map, and said we're
00:48:22going to draw a different one, but expressly said the whole time, didn't talk about the
00:48:26speaker, didn't talk about anyone else, didn't talk about politics, just said we're doing
00:48:30this because of race, we don't like that other map, race, race, race.
00:48:34So the shape of it was also based on race, which is different than the other one.
00:48:38Well, I think part of the strict scrutiny analysis is that you have to look at was race
00:48:44used in a way that wasn't necessary to comply with Section 2.
00:48:48So if they used race and they packed black voters in the district because they wanted
00:48:53to use that as a proxy or as a pretext for doing partisanship through race, that might
00:49:01render it invalid.
00:49:03So that would be an example where you couldn't just point to the earlier Section 2 litigation
00:49:10as the compelling interest?
00:49:11No, Your Honor, well, it is the compelling interest.
00:49:15The question is, in remedying the violation, did they use race in a way that wasn't necessary
00:49:21to remedy the violation, and they used it for some other illegitimate purpose, for their
00:49:27purpose.
00:49:28Justice Jackson?
00:49:29Yeah, just to follow up on Justice Barrett's point.
00:49:31Your point is just that the previous litigation provides the compelling interest, a good reason
00:49:35to go forward, but there's still always the narrow tailoring, and we're looking at what
00:49:40it is the state is actually doing with respect to its remedy, right?
00:49:45Yes, absolutely.
00:49:46Has the court ever held that race predominates whenever a state draws a district to comply
00:49:53with Section 2?
00:49:54I thought we suggested the opposite in Shaw v. Reno.
00:49:59This court has not held that.
00:50:00The court has expressly said that intentional creation of a majority-minority district does
00:50:06not on its own prove racial predominance.
00:50:09That was, the court said that in Bush v. Vera, and then in Bethune Hill, the court refused
00:50:15to find predominance even where the state had a 55% target.
00:50:18That was just one consideration in the predominance analysis.
00:50:21It wasn't the whole analysis.
00:50:23And is it the plaintiff's burden, the plaintiff's in the equal protection case, burden to disentangled
00:50:29race from politics in a case like this?
00:50:31Yes, of course.
00:50:32It's the plaintiff's burden at the first stage on predominance.
00:50:35Thank you, counsel.
00:50:39Mr. Grime?
00:50:48Mr. Chief Justice, and may it please the court, with one exception that we'll get to in a
00:50:55moment, there is nothing new or extraordinary in the fact pattern presented by this case.
00:51:04This is Shaw II again.
00:51:07This is Miller again.
00:51:09This is Bush v. Vera again.
00:51:12From the very beginning of this court's racial gerrymandering jurisprudence, it was born
00:51:18in an era where states were drawing majority-minority districts allegedly in order to comply with
00:51:25the VRA, whether it was DOJ pressure under Section 5 or fear of Section 2 liability.
00:51:32In Shaw II, the District 12, the unusual district in North Carolina, was not drawn
00:51:40where DOJ wanted the second district to be drawn.
00:51:44It was drawn there to protect Democratic incumbents.
00:51:48In each of these cases, the state always says it wants to protect incumbents.
00:51:54And that's why its district is not quite the same as DOJ wants or as the plaintiffs in
00:51:59Section 2 want.
00:52:01So there's nothing new about that in this case.
00:52:05What the appellant's claim is new is Robinson.
00:52:10But Robinson was not a final decision, and we can avoid all the problem about how final
00:52:15it was or how convincing it was by simply asking the defendant on strict scrutiny to
00:52:21bring this mountain of great evidence into the court and show why there's a strong basis
00:52:29in evidence for drawing a second district and to show why it's narrowly tailored.
00:52:32But ultimately, they didn't do that here because this decision is badly flawed and
00:52:37because the district judge in Robinson at page 834 looked at the original Hayes-Slash
00:52:43map, which is so close to this map, and said that the districts there were diffuse and
00:52:48nonsensical.
00:52:50And so that's why it never came up, and that's our problem here.
00:52:54I'm happy to answer questions.
00:52:57Do we have to accept Robinson, which is not on appeal here, as a given?
00:53:05Justice Thomas, we don't have to.
00:53:07Instead, we should have looked to the defendants to bring out the parts in district court about
00:53:13Robinson that they thought were so compelling, and they never did.
00:53:17They actually tried to block any discussion of Section 2 at the district court level.
00:53:22I'm sorry.
00:53:23No, go ahead.
00:53:24They have a decision by a lower court that they're likely to succeed.
00:53:36They have an appeal of a temporary restraining order where that court says they're likely
00:53:42to win.
00:53:44And we have a merits panel who looks at it and says they're likely to win.
00:53:49They can't – that's not enough to provide a good-faith basis for believing that they
00:53:56need to comply with Section 2.
00:53:58That's what you're saying.
00:54:00Well, there's two answers to that.
00:54:02First of all, if they did believe that, the answer, so that we wouldn't have to speculate
00:54:07here, would be bring the evidence to the three-judge district court.
00:54:10Why did they have to do that?
00:54:12Meaning what you're asking for is a re-litigation of Robinson in total.
00:54:17But it's not whether they were right or wrong.
00:54:19We've said that.
00:54:20Good faith doesn't mean that you're proven that you had to do this.
00:54:27It's just whether you had a good-faith basis to believe you should do it.
00:54:33But in Wisconsin legislature, this court said that the breathing room is for reasonable
00:54:40mistakes in the data.
00:54:41But you have to make your showing.
00:54:42You have to make your showing.
00:54:44We'll go back to that.
00:54:47Well, counsel, can I just ask you, because some of the things that you've said makes
00:54:49it seem as though you're suggesting that Louisiana's pointing to the court order was pretextual.
00:54:56In other words, you say, if they believed that the court was ordering them.
00:55:01So do you have some basis for disputing what Governor Landry said?
00:55:08We are here today because the federal courts have ordered us to perform our job.
00:55:12We have exhausted all legal remedies, and we have labored with this issue for too long,
00:55:16and that's why we're drawing the map.
00:55:19Do you concede that Louisiana at least sincerely believed that the courts were requiring it
00:55:25to do this?
00:55:26Well, I think I would simply point to the litigating position of Louisiana throughout
00:55:30the case, including just a few minutes ago.
00:55:32I mean, in their heart of hearts, they don't believe the VRA requires this.
00:55:36No, I understand.
00:55:37They thought the courts were wrong.
00:55:38But the question is, did they believe that a court was ordering them to do it?
00:55:44I mean, I am sort of concerned about your view, as seemingly expressed, and I want
00:55:51you to clarify it, that a court order compelling you to do something is not a good reason for
00:55:57you to do it.
00:55:59Justice Jackson, I'll just fall back on General Merrill's comments to the legislature, making
00:56:03clear that the state was not under a court order at the time.
00:56:07Instead, the Fifth Circuit said you can either go back and defend this district without using
00:56:12your Allen v. Milligan-style theories and actually put in evidence on the jingles factors,
00:56:17which they hadn't done, or you can go draw a VRA-compliant map.
00:56:22They were not ordered to simply go draw a new map.
00:56:23No, but that goes to the remedy.
00:56:25I'm asking about the violation.
00:56:27We had many judges, as other justices have set forward, that looked at the actual merits
00:56:35of the question of whether or not there would be a VRA violation if a new map wasn't drawn.
00:56:42So Louisiana felt, I think they're saying, compelled to do something about this, and
00:56:48you seem to be questioning whether or not they were, and I'm just trying to clarify
00:56:52that.
00:56:53Well, I mean, at the end of the day, we do have to take Louisiana at their word, but
00:57:00I just want to be clear.
00:57:01They were given a choice to actually go in and raise a defense, and I think reading Robinson
00:57:07makes this clear.
00:57:08The court says time and again, Louisiana, you raised the Alabama arguments from Allen
00:57:14v. Milligan.
00:57:15You tried to use experts to show that jingles one was violated because of the intent of
00:57:20the illustrative map drawers, but you never put in actual evidence on the types of factors
00:57:26that Justice Alito was talking about.
00:57:27So I guess I don't understand, Mr. Grime, like what should Louisiana have done?
00:57:32Louisiana litigated this case.
00:57:34It lost in the district court.
00:57:35It lost twice in the circuit court.
00:57:39You know, if I read the list of the judges, I'm just going to tell you that if you lose
00:57:42those judges, you're going to lose.
00:57:47We had no interest in taking the case.
00:57:49It was brought to us.
00:57:50We said no.
00:57:52What was Louisiana supposed to do?
00:57:54Well, I think in this case, the Fifth Circuit laid out the options.
00:57:58I mean, they, first of all, Louisiana had no reason to think, I mean, the same illustrious
00:58:04list of judges pointed out that you can start over again.
00:58:08You can retool and maybe don't use Alan v. Milligan as a roadmap this time.
00:58:13I mean, that hint was clearly given to the state.
00:58:16So I guess I get the idea that it did have the option to keep on finding ways to litigate
00:58:23this question, but what, I mean, there were ways that it could have refused to give up.
00:58:29I take that point.
00:58:30But at some point it said, you know, we've been told we're wrong by seven judges, and
00:58:38we're going to accept that, and we're going to move on and find a map.
00:58:43And then the state lawyers come in, and I mean, the record is like the state lawyer
00:58:48says there can be no better reasons to believe that the VRA required a second-majority black
00:58:55district than a precedential opinion of the Fifth Circuit, asserting that a map with a
00:58:59single-majority black district likely violated Section 2.
00:59:03And the state lawyer talks about all the process that they went through and the hearing that
00:59:09they had and the maps that were submitted.
00:59:12And she says, what better reason could there be for this?
00:59:16So like at a certain point, like I get that there might have been other options, but that's
00:59:21the whole point about breathing room, right?
00:59:24Breathing room is states have choices.
00:59:27And this was one state that decided on this choice that you don't agree with, but it was
00:59:32like well, well, well within the parameters of like a good-faith, reasonable choice.
00:59:40Justice Kagan, if that were true, then what the state should have done is brought that
00:59:44before the district court.
00:59:46What the state argued in the district court was is that Robinson's mere existence was
00:59:51dispositive, that we were essentially stopped from even bringing our claim for that reason.
00:59:56And so if the evidence was so compelling in Robinson, all they had to do was use their
01:00:02trial time.
01:00:03They didn't even use all their trial time and show us the key points.
01:00:06Counsel, you know, if we're going to defer to the Fifth Circuit, they also found a constitutional
01:00:11violation here too.
01:00:13So speaking out of all sides of Old Mouse down there, and I'm not sure that's how the
01:00:21system works anyway, but I have a question for you on the remedy.
01:00:26Your friends on the other side say, okay, race predominated in creating a second district.
01:00:34But race didn't play a role in this squiggly line district.
01:00:37It was politics.
01:00:41And I want to get your response to that.
01:00:43Sure.
01:00:44There are two responses, Justice Gorsuch.
01:00:45First of all, Senator Womack, in his presentation, he's the sponsor of the bill, said there is
01:00:52just not enough black voter population in southeast Louisiana, and he says that is why
01:00:59the district is drawn up to Shreveport, up I-49 and up the Red River to Shreveport.
01:01:05So the sponsors were very clear that that's what they were doing.
01:01:09So you can look at the evidence.
01:01:11But the other issue is this.
01:01:13The only reason that politics began to matter at this level was because they accepted that
01:01:19there had to be a second black majority district.
01:01:22That then caused the problem of losing an incumbent and having to choose who was going
01:01:27to be lost.
01:01:28What does it mean to say race or politics predominate?
01:01:31I mean, I thought the 14th Amendment said we don't look at race.
01:01:37Predominate says you can up to a point, but I don't know what that point would be.
01:01:44And I don't know, can two things predominate?
01:01:47Can politics and race predominate?
01:01:49I don't know.
01:01:50Justice Gorsuch, that may be a problem in some racial gerrymandering cases.
01:01:54It's not a problem here, though, because everyone admits that step one of the process, in fact,
01:01:59the state admits in its briefing the baseline was to draw a second black majority district.
01:02:05Everything else that happened, you know, flowed from that.
01:02:09And that's enough under Bethune-Hill, under Cooper, under several of the court's cases.
01:02:14That's enough for predominance?
01:02:16We have a case that says that if you are drawing a second or a third or whatever black
01:02:21minority district, you satisfy the racial predominance requirement?
01:02:25What I was quoting was that the standard for predominance is the initial decision that
01:02:32couldn't be compromised.
01:02:34And actually just last-
01:02:35I'm sorry, then there's no way to comply with section two.
01:02:39If what you're saying is a state could never in good faith redraw a map if it believes
01:02:49that it's going to draw a map that is going to solve a section two violation.
01:02:55That's what you're saying.
01:02:56No, Justice Sotomayor.
01:02:57So there's just a cycle they can't get out of.
01:02:59No, Justice Sotomayor, they would then show on strict scrutiny a strong basis in evidence
01:03:04for drawing that map.
01:03:06And that's what-
01:03:07But that's what they've done.
01:03:08That's what they've done here.
01:03:09They've got a judge saying, you've violated it.
01:03:12There's an alternative map that meets all traditional criteria.
01:03:17Go draw your own map, but make sure you get a second doubt because that's the only way
01:03:23to remedy this violation.
01:03:26And they come up with a second map or a different map that they show is based purely on politics.
01:03:36They wanted to save three incumbents, so they drew lines to save three incumbents.
01:03:43Justice Sotomayor, I think it is helpful to look at the remedial map.
01:03:46I mean, first of all, Senator Womack stated that it was for the purpose of capturing additional
01:03:52black voters that it was drawn that way.
01:03:54But we can skip a lot of the difficult issues that have been raised here by going to one
01:03:59point.
01:04:00And that point is from Shaw to from Miller and from Bush and actually in LULAC as well,
01:04:05which is that you can never have a Section 2 remedial map that fails Jingles 1, that
01:04:12is not geographically compact and does not comply with traditional redistricting criteria.
01:04:17And that's what the district court found here as a matter of fact.
01:04:21We have a factual finding from the district court on that point.
01:04:26Their answer to that, I think, is the 70 percent, so can you just address that?
01:04:30Sure.
01:04:31So the 70 percent does not trump the geographical compactness requirement.
01:04:38I will address that, but I want to make very clear that no matter what, even if you've
01:04:43covered a lot of the old population, you can't draw a non-compact remedial district, and
01:04:47that decides the case.
01:04:49But the other problem is this.
01:04:50First of all, I think the correct number is something like 67 percent, we looked, but
01:04:55it's over half of the population.
01:04:57And that really matters when you're looking at Jingles, because remember, Jingles hinges
01:05:03on some very fine calculations.
01:05:06And when you lop off 100,000 black voters in 14 parishes, have to find 100,000 new black
01:05:13voters in another area of the state, you can't just assume that that's substantially related.
01:05:18The 20 percent issue also, if you go back and look at Shaw 2, the 20 percent they're
01:05:23talking about is Mecklenburg County.
01:05:26They're talking about the black voter core of that county.
01:05:29The court's referring to 20 percent of the area of that District 12, and we couldn't
01:05:35tell.
01:05:36We looked for this.
01:05:37You can't, it may, it likely was a much higher percentage of the black voter population of
01:05:43District 12, but it's not in the record and I've not been able to figure it out.
01:05:47Mr. Counsel, speaking of the record, I have to point to what the appellants point to on
01:05:55page 18 of their brief.
01:05:59This is the state's brief.
01:06:02When they talk about Senator Womack, you've mentioned him several times, and apparently
01:06:07he was asked directly what was the predominant reason for you to create the 6th District
01:06:13this way, the way it looks now, versus just going with Senator Price's bill, which created
01:06:18a more compact district, and he answered it was strictly politics.
01:06:24Politics drove this map because of the Speaker Johnson, Majority Leader Scalise, and my Congresswoman,
01:06:31Julia Letlow, predominantly drove this map, and he disavowed that race was the predominant
01:06:36factor.
01:06:37You've said exactly the opposite several times here, so can we just get some clarity on what
01:06:42Womack's position was?
01:06:43Sure.
01:06:44First of all, Senator Womack said a lot of things.
01:06:47What I quoted from Senator Womack was accurate, but what Senator Womack was doing was distinguishing
01:06:53between the Robinson maps, or what everyone presumed them to be, and the new district.
01:06:59The problem, though, is that this Court has never said that there is a second intent analysis
01:07:06done on strict scrutiny.
01:07:07In fact, Justice Kennedy, specifically in Bush v. Veras, in response to Justice O'Connor
01:07:13suggesting that that could be the standard, said we've never recognized that, and no case
01:07:18from this Court ever has.
01:07:19Let me put it this way.
01:07:20If Louisiana had accepted the initial Robinson map, would you have brought your litigation,
01:07:25would you have been able to make the argument that this was not compact, this was somehow
01:07:29a violation, or what would your position have been?
01:07:34Well, we don't have all the facts in front of us, but we would have scrutinized it, and
01:07:37if the record had been what it was in Robinson so far, we absolutely would have brought the
01:07:42case.
01:07:43And then they would have come into our case and said, well, you know, we think it's compact.
01:07:49You know, we only looked at plan-wide compactness, and that's why we won.
01:07:53I mean, I think we would have prevailed.
01:07:56But it's a hypothetical.
01:07:57I guess I don't quite understand the role compactness plays in your analysis, because
01:08:01– and this goes back to Justice Kavanaugh's point that it's really sort of two steps.
01:08:05I mean, once Robinson has provided Louisiana with a good reason to think that there was
01:08:11a Section 2 violation that they needed to remedy by creating another minority district,
01:08:17once that happened, what Louisiana did was, like, look at this map and say, essentially,
01:08:23we have three incumbents, and we know which two are really important for the state to
01:08:27keep.
01:08:28And they created a map that made sure that they kept the two incumbents that were most
01:08:33important for the state to keep.
01:08:36And like, why isn't that, like, completely within the prerogative of a state?
01:08:41That has nothing to do – I mean, it creates a less compact district, no doubt about that,
01:08:47but you know, we've never said to states, oh, you've got to go with compactness when
01:08:51the Speaker of the House is going to be thrown out.
01:08:54I mean, it's totally within the prerogative of the state to say incumbent protection and
01:09:00particular incumbents are really super important to us.
01:09:04Two responses, Justice Kagan.
01:09:05First of all, we're in strict scrutiny at this point.
01:09:08I mean, the state has racially gerrymandered black and white voters.
01:09:13No, but there's, like, two steps here.
01:09:15One is, is there a good reason to think there's a Section 2 violation?
01:09:20Justice Kagan has created the premise of thinking that there's good reason, that you need to
01:09:25create another map.
01:09:27Now the question is, what does that map look like?
01:09:30It's the remedial question.
01:09:31It's the, does the map substantially address the Section 2 violation that you have good
01:09:37reason to think exists?
01:09:40And the state says, you know, the plaintiffs have presented these maps that would substantially
01:09:45address that.
01:09:46We have a better map that would substantially address that, that also allows us to keep
01:09:51our incumbent better because it allows us to keep our incumbents.
01:09:56I mean, what's wrong with that?
01:09:59So if the state can't do that, the state has no breathing room.
01:10:03Well, first of all, we disagree with the first premise of the question.
01:10:07But here's, I think, where the problem is.
01:10:11This Court is going to have to overrule Shaw 2 and Miller if it holds that you don't have
01:10:17to draw a geographically compact remedial district.
01:10:21Because the Court in Shaw 2 said, looking at District 12, there's no way we can find
01:10:27that there is a geographic, geographically compact population of any population of that
01:10:32district.
01:10:33And that is why, that's why they lost in Shaw 2.
01:10:36I think this is a little bit backwards, Mr. Grime, because you will only get to evaluate
01:10:40CD6 if we find that there was good reason to think that there was a substantial likelihood
01:10:48of a voting rights violation.
01:10:53So that good reason is provided by Robinson.
01:10:57And Robinson says that there's a compact minority population whose Section 2 rights are likely
01:11:02being violated.
01:11:03Once Robinson says that, the question, you know, only becomes whether CD6 substantially
01:11:10addresses that Section 2 violation.
01:11:13But the compactness inquiry, which is, you know, is there a compact district such that
01:11:20Section 2 is being violated, that happens at the first step of the analysis, and Robinson
01:11:25has already addressed that question.
01:11:27Well, but unfortunately, Robinson is addressing a different area of the state.
01:11:33And that's the problem.
01:11:34That's why compactness is a backstop.
01:11:36The other problem is this.
01:11:38In states where you are reading out the very last elements of black voting population,
01:11:43it's inevitable that whatever the gerrymander is, it's finally drawn, is probably going
01:11:49to have some fair slice of what was in the original maps.
01:11:54That's why if you only focus on overlap, you're missing the key issue from Shaw 2 and from
01:11:59Miller, which is that you have to have a geographically compact, remedial district
01:12:05full stop.
01:12:07And that's the backstop that keeps us from having to draw lines and figure out how much
01:12:11of Mecklenburg County was really in each district, and whether 67 percent and over half the territory
01:12:18is enough.
01:12:19And, again, it matters because these are Jingles districts, and all we know is the average
01:12:23for the whole district.
01:12:24We don't even know that the section we're gathering combines with the new voters to
01:12:28satisfy Jingles.
01:12:29Maybe I'm missing the thrust of the question, but the question seems to be, is it not the
01:12:36case that if you grant the premise, then on the remedial, at the remedial phase, anything
01:12:42goes?
01:12:43Now, can that possibly be correct?
01:12:46Suppose that the district that's created is not, the parts of this district are not even
01:12:54connected.
01:12:55An island here, an island there, an island here, an island there.
01:12:59Would that be okay?
01:13:00Absolutely not, and that's the problem.
01:13:03Mr. Griman, it is not an anything goes inquiry.
01:13:05We've said it has to substantially address the voting rights population.
01:13:09So, for example, where there was a remedial district that addressed only 20 percent of
01:13:14the people whose rights were actually violated, we, of course, struck that down.
01:13:19But here, the district addressed 70 percent of the people whose rights were being violated,
01:13:25which seems like a ways different from 20 percent, and seems to suggest that the voting
01:13:30rights district was, the voting rights violation was being substantially addressed, which is
01:13:36the only thing we've ever required at that point.
01:13:39But, well, actually, Justice Kagan, in Shaw 2, the court says that the remedial district
01:13:46must be compact.
01:13:48It must hold a geographically compact population, and, you know, why not just take Shreveport,
01:13:53skip the intermediate territory, and not have it be contiguous, and add that to what is
01:13:58claimed to be the core of this district?
01:14:00Now, again, it was the state's burden to show this in the district court.
01:14:04This argument was never raised in the district court.
01:14:06There was no evidence whatsoever in the record about how many of the people from the original
01:14:11district were in there, and whether, by combining them with the new populations, we have anything
01:14:16that looks like a jingles district.
01:14:18Because again, their entire argument was the mere existence of Robinson completely
01:14:23satisfies strict scrutiny.
01:14:24That cannot be correct.
01:14:26Your lead argument in the brief for why there was no compelling interest here in the race-based
01:14:31redistricting on page 36 was the durational point, the Constitution.
01:14:38The authority of a state to engage in race-based redistricting must have an end point.
01:14:44You haven't mentioned that so far.
01:14:46The other side said that that argument's been forfeited, and I want to get your response
01:14:51to that.
01:14:52The fact that you haven't mentioned it so far certainly supports what they're saying
01:14:55on that, but I'll give you a chance to respond.
01:14:58Sure.
01:14:59I mean, the problem with this case is that we think the appellees win many different
01:15:04ways, and this is an argument we're making on the side of the case that is the state's
01:15:09burden.
01:15:10And so I don't think the law supports that it's our duty to anticipate second or third
01:15:19or fourth reasons why they'll fail under strict scrutiny and make sure we raise them below.
01:15:26And so I don't think the argument was ours to forfeit.
01:15:29I guess I can put it that way.
01:15:32But the problem is this.
01:15:34If you go back to Robinson, the evidence on current racial context in Louisiana that still
01:15:43requires this purely effect-based test was very thin.
01:15:49They could have actually – in fact, they would have had to have raised that in the
01:15:52district court below.
01:15:54But they never did do that.
01:15:56Again, they didn't bring in any jingles evidence, let alone the kind of evidence that would
01:16:00say if you look around Louisiana, there are still a lot of barriers to black citizens
01:16:05voting.
01:16:06So that's not on the record.
01:16:07I think there's a reason for that, and I think that shows us that Section 2 is no longer
01:16:13performing the function that it was assigned, that Congress thought it was going to perform
01:16:17back in 1982.
01:16:19Now we're – why are we seeing so many Section 2 cases?
01:16:23Why are we suddenly now, as voters are becoming more integrated, why are we suddenly finding
01:16:28new Section 2 districts everywhere?
01:16:30I think that's a problem.
01:16:35Thank you, counsel.
01:16:36Justice Thomas.
01:16:37Justice Jackson.
01:16:38I just have one final question, and it's the Robinson map, the proposed Robinson map
01:16:50that had the black district, that would be one that might oust Julia Latlow.
01:16:58Is it your position that the black district drawn in that map was not sufficiently compact?
01:17:06Your Honor, we think if we have a chance to litigate that, which we would at the remedial
01:17:11phase, assuming that that's raised again, we think we'll be able to show that it's
01:17:14not sufficiently compact, that there are far-flung black communities in northern Louisiana and
01:17:21even in the Delta parishes in Lafayette that don't have very much in common with the
01:17:27more dense population in East Baton Rouge.
01:17:29I think we'll be able to show it doesn't perform as well, but not in the record.
01:17:34Thank you, counsel.
01:17:35Rebuttal, counsel.
01:17:36Thank you, Mr. Chief Justice.
01:17:39Just three brief points.
01:17:41First on racial predominance, I would emphasize this Court's decision last year in Alexander
01:17:46where the Court emphasized caution that when a federal court says that race was a legislature's
01:17:51predominant purpose in drawing a district, it accuses that legislature of offensive and
01:17:57demeaning conduct.
01:17:58If that caution applies in the ordinary case, respectfully, it should be especially heightened
01:18:03here in the case where two Article III courts are telling a state to use race to draw a
01:18:08second-majority district.
01:18:10So Justice Jackson, we don't think the Court needs to get to strict scrutiny because race
01:18:14did not predominate under Alexander.
01:18:17Second, on the question of strict scrutiny, my friend talks a lot about Shaw and compactness,
01:18:22but respectfully, my friend ignores footnote 9 of Shaw II.
01:18:26There in footnote 9 of Shaw II, this Court said that even a plaintiff in a successful
01:18:31Section 2 case does not have a right to be in the ultimate remedial district that is
01:18:35drawn.
01:18:36That's because, that footnote emphasizes, a state has broad leeway to draw that district.
01:18:42Respectfully, there is no holding in this Court's cases that require us to satisfy jingles
01:18:46in drawing the remedial district as we did here.
01:18:49The third point is just one about next steps.
01:18:52With all due respect, we'd rather not be back at the podium this fall defending a new
01:18:56map against a new challenge.
01:18:59This Court's cases promise breathing room.
01:19:01We operated in that breathing room in drawing District 6.
01:19:05And if this Court holds otherwise, then respectfully, I don't know what this Court's voting cases
01:19:09mean.
01:19:10We ask you to reverse.
01:19:12Thank you, Counsel.
01:19:13The case is submitted.