No.

24-_____

In the
Supreme Court of the United States
STATE OF LOUISIANA,
Appellant,
v.
PHILLIP CALLAIS, ET AL.,
Appellees.

On Appeal from the United States District Court for

the Western District of Louisiana

JURISDICTIONAL STATEMENT

ELIZABETH B. MURRILL J. BENJAMIN AGUIÑAGA

Attorney General Solicitor General
LOUISIANA DEPARTMENT OF Counsel of Record
JUSTICE MORGAN BRUNGARD
1885 N. Third St. Deputy Solicitor General
Baton Rouge, LA 70802
(225) 506-3746
[email protected]

July 30, 2024

 i
QUESTIONS PRESENTED
Over the State’s strenuous objections, the Middle
District of Louisiana held, Robinson v. Ardoin, 605
F. Supp. 3d 759 (M.D. La. 2022)—and the Fifth Cir-
cuit affirmed, Robinson v. Ardoin, 86 F.4th 574 (5th
Cir. 2023)—that Louisiana likely violated Section 2 of
the Voting Rights Act (VRA) by failing to create a sec-
ond majority-Black congressional district. The Fifth
Circuit gave the Legislature a small window of time to
adopt its own remedial plan, or else the State would
have to go to trial, which would almost certainly end
in the Middle District imposing its own preferred map.
Rather than acquiesce in the Middle District’s prefer-
ences, the Legislature reclaimed its sovereign redis-
tricting pen and passed S.B. 8, which created a second
majority-Black district as the courts demanded, pro-
tected the Legislature’s sovereign prerogatives, and
achieved its political goals.
In this case, a majority of a three-judge court sit-
ting in the Western District of Louisiana enjoined
S.B. 8 as an unconstitutional racial gerrymander. The
questions presented are:
1. Did the majority err in finding that race pre-
dominated in the Legislature’s enactment of
S.B. 8?
2. Did the majority err in finding that S.B. 8
fails strict scrutiny?
3. Did the majority err in subjecting S.B. 8 to
the Gingles preconditions?
4. Is this action non-justiciable?
 ii
PARTIES TO THE PROCEEDING
AND RELATED PROCEEDING
Appellant is the State of Louisiana, through Loui-
siana Attorney General Elizabeth B. Murrill. The
State was an intervenor-defendant below.
Appellees are Phillip Callais, Lloyd Price, Bruce
Odell, Elizabeth Ersoff, Albert Caissie, Daniel Weir,
Joyce LaCour, Candy Carroll Peavy, Tanya Whitney,
Mike Johnson, Grover Joseph Rees, and Rolfe
McCollister. Appellees were plaintiffs below.
The original defendant below was Nancy Landry,
in her official capacity as the Louisiana Secretary of
State.
Other intervenor-defendants below were Alice
Washington; Clee Earnest Lowe; Power Coalition for
Equity and Justice; Ambrose Sims; Davante Lewis;
Dorothy Nairne; Martha Davis; Edwin Rene Soule;
Press Robinson; Edgar Cage; and the National Associ-
ation for the Advancement of Colored People Louisi-
ana State Conference (the “Robinson Plaintiffs”). And
granted intervenor-defendant status after the trial
and injunction below were Edward Galmon, Sr.; Ciara
Hart; Norris Henderson; and Tramelle Howard (the
“Galmon Plaintiffs”).
The relevant order is Callais v. Landry, No. 2:24-
cv-00122 (W.D. La. Apr. 30, 2024) (reasons for judg-
ment and injunction).
 iii
TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

PARTIES TO THE PROCEEDING AND

RELATED PROCEEDING..........................................ii

TABLE OF AUTHORITIES ........................................ v

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

OPINION BELOW ...................................................... 4

JURISDICTION .......................................................... 4

CONSTITUTIONAL PROVISIONS INVOLVED ...... 5

STATEMENT OF THE CASE .................................... 5

REASONS FOR NOTING PROBABLE

JURISDICTION ........................................................ 16

I. THE MAJORITY ERRED IN FINDING THAT

RACE PREDOMINATED IN THE
LEGISLATURE’S ENACTMENT OF S.B. 8. ............. 17

II. THE MAJORITY ERRED IN FINDING THAT

S.B. 8 FAILS STRICT SCRUTINY. ......................... 24

III. THE MAJORITY ERRONEOUSLY IMPORTED

GINGLES INTO THE STRICT SCRUTINY
ANALYSIS. ......................................................... 30
 iv
IV. PLAINTIFFS’ CHALLENGE IS
NON-JUSTICIABLE. ......................................... 32

CONCLUSION .......................................................... 34

APPENDIX

Appendix A – Opinion of the United States District

Court for the Western District of Louisiana, Monroe
Division filed April 30, 2024 ..................................... 1a

Appendix B – The State of Louisiana’s and Secretary

of State’s Amended Notice of Appeal filed May 7,
2024 ........................................................................ 147a
 v
TABLE OF AUTHORITIES
Cases
Ala. Legislative Black Caucus v. Alabama,
575 U.S. 254 (2015) ................................................ 24
Alexander v. S.C. State Conf. of the NAACP,
602 U.S. ___, 144 S. Ct. 1221 (2024)... 1, 4, 5, 16, 17,
18, 19, 23, 24, 32, 33
Bethune-Hill v. Va. State Bd. of Elections,
580 U.S. 178 (2017) .................... 3, 24, 25, 26, 29, 32
Bush v. Vera,
517 U.S. 952 (1996) ............................................ 9, 22
Callais v. Landry,
No. 2:24-cv-00122 (W.D. La. Apr. 30, 2024) ............ii
Callais v. Landry, No.
3:24-CV-00122, 2024 WL 1903930 (W.D. La. Apr.
30, 2024) ................................................................... 4
Cooper v. Harris,
581 U.S. 285 (2017) ................................ 3, 19, 29, 31
Easley v. Cromartie,
532 U.S. 234 (2001) ................................................ 22
Hays v. Louisiana,
839 F. Supp. 1188 (W.D. La. 1993) ...................... 6, 7
Hays v. State of Louisiana (Hays IV),
936 F. Supp. 360 (W.D. La. 1996). ............... 5, 6, 7, 8
In re Landry,
83 F.4th 300 (5th Cir. 2023)............................. 10, 30
LULAC v. Perry,
548 U.S. 399 (2006) ................................................ 32
Major v. Treen,
574 F. Supp. 325 (E.D. La. 1983) ............................. 5
 vi
Miller v. Johnson,
515 U.S. 900 (1995) .......................................... 19, 24
Robinson v. Ardoin,
142 S. Ct. 2892 (2022) ........................................ 7, 10
Robinson v. Ardoin,
143 S. Ct. 2654 (2023) ........................................ 8, 10
Robinson v. Ardoin,
37 F.4th 208 (5th Cir. 2022)................................... 10
Robinson v. Ardoin,
605 F. Supp. 3d 759 (M.D. La. 2022) ..... i, 7, 8, 9, 25,
29, 33
Robinson v. Ardoin,
86 F.4th 574 (5th Cir. 2023)... i, 8, 10, 11, 25, 29, 30,
31
Robinson v. Ardoin,
No. 22-30333 (5th Cir. Dec. 15, 2023).................... 11
Shaw v. Hunt,
517 U.S. 899 (1996) ............................................ 9, 24
United States v. Hays,
515 U.S. 737 (1995) .................................................. 7
Statutes
28 U.S.C. § 1253 .......................................................... 5
28 U.S.C. § 2284(a) ...................................................... 4
Constitutional Provisions
La. Const. art. III, § 2(B) ........................................... 13
U.S. Const. amend. XIV, § 1........................................ 5
U.S. Const. amend. XV, § 1 ......................................... 5
 1
INTRODUCTION
The facts in this case are virtually unprecedented
in the Court’s redistricting jurisprudence. Judge Stew-
art recognized below that this is “anything but a
‘usual’ racial gerrymandering case.” App.70a (Stew-
art, J., dissenting). 1 And Justice Thomas subsequently
described Louisiana’s predicament in this case as “un-
tenable,” an “impossible needle” to thread, and “a lose-
lose situation.” Alexander v. S.C. State Conf. of the
NAACP, 602 U.S. ___, 144 S. Ct. 1221, 1267 (2024)
(Thomas, J., concurring in part). That is exactly right.
For the better part of two years, the State vigor-
ously defended against a challenge that its congres-
sional map violated Section 2 of the VRA. That litiga-
tion (the Robinson litigation) went up to this Court
and back, on everything from an injunction, to emer-
gency stays, to mandamus. When the dust finally set-
tled last fall, the State was subject to two key rulings.
First, the Middle District of Louisiana held—in the
preliminary-injunction posture—that the State likely
violated Section 2 by failing to create a second major-
ity-Black congressional district. Second, the Fifth Cir-
cuit expressly affirmed that merits holding before va-
cating the injunction on procedural grounds. The
courts then gave the State an ultimatum: The State
could draw its own remedial map by January 2024, or
it could go to trial on the old map which—because of

1 “App.[#a]” refers to the Appendix attached to this jurisdic-

tional statement. “Stay App.[#]” refers to the Appendix attached

to the stay application in Robinson v. Callais, No. 23A994 (U.S.
May 8, 2024). “Stay Add.[#]” refers to the Addendum attached to
the stay application in Landry v. Callais, No. 23A1002 (U.S. May
9, 2024).
 2
the tight timeline and imminent elections—was virtu-
ally certain to end in the Middle District imposing its
own two majority-Black district map.
The State refused to let the federal courts usurp
the Legislature’s sovereign redistricting authority. So,
in January 2024, the Governor called a special session,
and the Legislature convened to draw its map. The
record is crystal clear that everyone understood the
federal courts’ mandate: Any map must have a second
majority-Black district to comply with the Middle Dis-
trict’s construction of Section 2 of the VRA. But legis-
lators differed on how to draw such a map. In particu-
lar, some—including those sponsoring the ultimate
map—were concerned with specific political objec-
tives, such as not “double-bunking” incumbents in the
same district and protecting high-profile incumbents
like the Speaker of the U.S. House of Representatives.
From that political fray came S.B. 8.
The respite provided by the passage of S.B. 8
proved short lived, however. The plaintiffs in this case
(Plaintiffs or Callais Plaintiffs) sued in the Western
District of Louisiana, alleging that S.B. 8 is an uncon-
stitutional racial gerrymander. After a trial on the
merits, a majority of the three-judge court below
agreed and enjoined S.B. 8, leaving Louisiana with no
approved congressional map just days before the Sec-
retary of State needed a map to begin the 2024 election
process. The court’s refusal to stay its order forced this
Court to enter an emergency stay in May 2024.
To put the situation bluntly, the State is stuck in
an endless game of ping-pong—and the State is the
ball, not a player. Without this Court’s intervention,
the State will be sued again no matter what it does. If
 3
the Legislature passes a map with two majority-Black
districts, it will be sued again by Plaintiffs in this case
or others in the Western District for allegedly violat-
ing the Fourteenth Amendment. After all, as Plaintiffs
announced to this Court, they “have already shown
that the Black population is too dispersed outside of
Southeast Louisiana to draw another Black-majority
district.” See Resp. to Emergency Apps. for Stay Pend-
ing Appeal and for Stay of Injunction at 41,
No. 23A1002, Landry v. Callais (U.S. May 13, 2024)
(Callais Stay Opp.). But if the Legislature passes a
map with one majority-Black district, it will be sued
again by the Section 2 plaintiffs in the Middle District
for allegedly violating the VRA. After all, as the Rob-
inson plaintiffs have announced to this Court, the
State “had to” adopt “a second majority-Black dis-
trict.” Emergency App. for Stay of Injunction at 33,
No. 23A994 (U.S. May 8, 2024).
With all due respect to the judges in the cases be-
low, this redistricting saga must end. The best way to
do this is to enforce the Court’s promise that a State
need only have “‘a strong basis in evidence’ for con-
cluding that the [VRA] required its action.” Cooper v.
Harris, 581 U.S. 285, 292 (2017). That flexible stand-
ard ensures that State legislatures have “breathing
room” between “‘the competing hazards of liability’ un-
der the Voting Rights Act and the Equal Protection
Clause.” Bethune-Hill v. Va. State Bd. of Elections, 580
U.S. 178, 196 (2017). Here, Louisiana easily satisfies
that standard: Although the State heavily disputed
this conclusion for two years, the Middle District and
the Fifth Circuit ultimately held that the State likely
violates Section 2 of the VRA for failing to create a sec-
ond majority-Black district. That holding presents a
 4
strong basis in evidence for the State to believe that
the VRA required a map like S.B. 8, i.e., a two major-
ity-Black district map, as a remedy—and thus, rever-
sal is warranted to correct the three-judge court’s con-
trary holding.
One final note on the state of the law. This case
uniquely demonstrates the folly of current redistrict-
ing litigation. If the State loses this case despite this
Court’s promise of “breathing room,” then the reality
is there is no oxygen in that room. But redistricting
litigation should not be a fight to the death to see who
finally succeeds in suffocating a State. No one truly
wins that fight—the State loses, its voters lose, the ju-
diciary loses, and democracy itself loses. Cf. Alexan-
der, 144 S. Ct. at 1267 (Thomas, J., concurring in part)
(“We have extracted years of litigation from every dis-
tricting cycle, with little to show for it.”). If ever there
were a case that warranted reconsideration of the ju-
diciary’s involvement in congressional redistricting,
this is it.
The Court should note probable jurisdiction and re-
verse.

OPINION BELOW
The three-judge court’s opinion is reported at Cal-
lais v. Landry, No. 3:24-CV-00122, 2024 WL 1903930
(W.D. La. Apr. 30, 2024) and reproduced at App.1a–
146a.

JURISDICTION
The three-judge court, empaneled under 28 U.S.C.
§ 2284(a), issued its decision on April 30, 2024.
 5
App.1a–146a. The State filed an amended notice of ap-
peal on May 7, 2024. App.147a–50a. On June 24, 2024,
Justice Alito granted the State’s application to extend
the deadline for filing a jurisdictional statement from
July 8, 2024, to July 30, 2024. See Landry v. Callais,
No. 23A1442 (U.S.). This Court has jurisdiction under
28 U.S.C. § 1253.

CONSTITUTIONAL PROVISIONS INVOLVED

Under the Fourteenth Amendment’s Equal Protec-
tion Clause, no State shall “deny to any person within
its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. Under the Fifteenth Amend-
ment, “[t]he right of citizens of the United States to
vote shall not be denied or abridged … by any State on
account of race, color, or previous condition of servi-
tude.” U.S. Const. amend. XV, § 1.

STATEMENT OF THE CASE

A. Factual Background
1. Louisiana’s “lose-lose situation,” Alexander, 144
S. Ct. at 1267 (Thomas, J., concurring in part), began
thirty years ago with the Hays litigation. In the 1980s,
none of Louisiana’s eight congressional voting dis-
tricts was a majority-Black district. That changed in
1983 when a three-judge panel invalidated the exist-
ing plan, finding that it diluted minority voting
strength in the New Orleans area. See Major v. Treen,
574 F. Supp. 325 (E.D. La. 1983). Accordingly, the
Louisiana Legislature enacted a map that “included a
majority-[B]lack district in the New Orleans area.”
Hays v. State of Louisiana (Hays IV), 936 F. Supp. 360,
363 (W.D. La. 1996).
 6
In the 1990s, “the [Louisiana] Legislature learned
that, as a result of the 1990 census, Louisiana’s con-
gressional delegation had been reduced from eight
members of the House of Representatives to seven.”
Id. at 362. At the time, Section 5 of the VRA required
the State to obtain the U.S. Attorney General’s pre-
clearance for any proposed legislation changing Loui-
siana’s congressional districts. The Attorney General
at the time had made plain that he would not preclear
any Louisiana plan that did not add a second majority-
Black district—for a total of two “out of seven.” Hays
v. Louisiana (Hays I), 839 F. Supp. 1188, 1196 n.21.
(W.D. La. 1993).
Knowing that the Attorney General would refuse
to pre-clear any map with fewer than two majority-
Black districts, the Louisiana Legislature twice “di-
rected its energies toward crafting such a plan.” Hays
IV, 936 F. Supp. at 363 (“[T]he Civil Rights division of
the Department of Justice was the bete noir that
caused the Legislature to accept as inevitable the need
either to produce a plan comprising two majority-mi-
nority districts or be denied preclearance ….”).
Both times, the Legislature passed maps that
(a) maintained the New Orleans-centered majority-
Black district from the 1980s and (b) created a second
majority-Black district anchored in East Baton Rouge
Parish and extending north along the Mississippi
River into Louisiana’s Delta Region and then across to
northwest Louisiana. See id. at 363–64. Both times,
the maps were “promptly precleared by the Attorney
General.” Id. at 364. And both times, the Western Dis-
trict of Louisiana struck down the maps as racial ger-
rymanders that violated the Fourteenth Amendment’s
 7
Equal Protection Clause. See Hays I, 839 F. Supp. at
1195; Hays IV, 936 F. Supp. at 368.
On direct appeal, this Court concluded that the
Hays Plaintiffs lacked standing, vacated Hays II, and
remanded the case with instructions to dismiss the
Complaint. United States v. Hays (Hays III), 515 U.S.
737, 747 (1995). On remand, the Western District al-
lowed the Hays Plaintiffs to amend their Complaint to
remedy their standing deficiencies. See Hays IV, 936
F. Supp. at 366. The Western District then again con-
cluded that having two majority-Black districts “con-
stitute[d] a racial gerrymander,” “declared” the map
“null and void,” enjoined the State from using the map
“in any future elections,” and “directed” the State “to
implement the redistricting plan drawn by th[e]
court,” which contained only one majority-Black dis-
trict. Id. at 367, 372. No appeal was taken from that
Hays IV decision.
The heart of that district centered on New Orleans.
See id. at 373–74 (containing the court-ordered map in
Appendix III). East Baton Rouge, the anchor of Loui-
siana’s ill-fated second majority-Black district, was re-
turned to a non-majority-Black district. Id. Since then,
the Legislature has not dared to deviate from Hays IV
by again attempting a second majority-Black dis-
trict—at least not until other federal courts compelled
that attempt.
2. Fast-forward thirty years. After receiving the
2020 Census results, Louisiana began its decennial re-
districting process. Robinson v. Ardoin, 605 F. Supp.
3d 759, 767 (M.D. La. 2022), cert. granted before judg-
ment, 142 S. Ct. 2892 (2022), cert. dismissed as im-
 8
providently granted, 143 S. Ct. 2654 (2023), and va-
cated and remanded, 86 F.4th 574 (5th Cir. 2023). In
preparation for the Legislature’s special redistricting
session, state officials traveled across the State, hold-
ing “roadshows” to inform constituents and collect
feedback from voters. Id.
In February 2022, the Legislature convened in a
special redistricting session and, ever mindful of Hays
IV, passed H.B. 1—a map that included only one ma-
jority-Black district centered on New Orleans. When
then-Governor John Bel Edwards vetoed H.B. 1, the
Legislature voted to override his veto in March 2022.
Id. at 768.
The same day H.B. 1 took effect, two groups of
plaintiffs sued in the Middle District of Louisiana. Id.
In their collective view, Section 2 of the VRA required
Louisiana to create a second majority-Black congres-
sional district. See id. Their arguments hinged on pro-
portionality—i.e., because “Louisiana has six congres-
sional districts and a Black population of over 33%,”
two of Louisiana’s six congressional districts had to be
majority Black. See Stay Add.26. The State of Louisi-
ana and two of the State’s Legislative leaders inter-
vened, Robinson, 605 F. Supp. 3d at 768–69, and the
Middle District consolidated the two cases, id. at 769.
In June 2022, the Middle District issued a prelim-
inary injunction against H.B. 1 after proceeding on an
extremely compressed timetable. Id. at 766. “The rel-
evant question,” that court said, was “whether, taking
into account traditional redistricting principles[,] … a
reasonably compact and regular [second] majority-
Black district [could] be drawn.” Id. at 829. The Middle
District answered that question in the affirmative:
 9
“[T]wo majority-minority congressional districts that
satisfy Gingles and respect traditional redistricting
principles can be drawn in Louisiana.” Id. at 820. That
court also rejected “for both legal and factual reasons”
the argument that a second majority-Black district
would violate the Equal Protection Clause. Id. at 835.
Recognizing the State’s sovereign right to draw a
new map, the Middle District gave the Louisiana Leg-
islature about a month “to enact a new map that is
compliant with Section 2 of the Voting Rights Act.” Id.
at 858. The Middle District recognized the State’s
“broad discretion in drawing districts to comply with
the mandate of § 2” and emphasized that the State
was free to draw a district different from the one the
plaintiffs had proposed or that “a court would impose
in a successful § 2 challenge.” Id. at 857–58 (first quot-
ing Shaw v. Hunt, 517 U.S. 899, 917 n.9 (1996), then
quoting Bush v. Vera, 517 U.S. 952, 978 (1996)). The
Middle District acknowledged that—whatever new
legislation the Legislature proposed in response to the
preliminary injunction against H.B. 1—the State both
retained “flexibility” to avoid strict scrutiny “by re-
specting [its] own traditional districting principles”
and deserved deference for its “reasonable efforts” to
cure the perceived Section 2 violation. Id. (quoting
Vera, 517 U.S. at 978).
The State appealed and sought a stay of the H.B. 1
preliminary injunction pending appeal. The Fifth Cir-
cuit first granted an administrative stay of the H.B. 1
injunction while it considered the State’s request for a
stay pending appeal, only to later “vacate the admin-
istrative stay and deny the motion for stay pending
appeal.” Robinson v. Ardoin, 37 F.4th 208, 215 (5th
 10
Cir. 2022). The State then applied to this Court for an
emergency stay of the H.B. 1 injunction pending ap-
peal. See Ardoin v. Robinson, 142 S. Ct. 2892, 2892–93
(2022) (mem.). This Court granted the stay and certi-
orari before judgment and held Robinson in abeyance
pending resolution of Merrill v. Milligan, a Section 2
challenge to Alabama’s congressional map then pend-
ing before the Court. Id. After the Court decided Mil-
ligan, the Court lifted the stay of the H.B. 1 prelimi-
nary injunction and remanded to the Fifth Circuit for
“review in the ordinary course and in advance of the
2024 congressional elections in Louisiana.” Ardoin v.
Robinson, 143 S. Ct. 2654 (2023) (mem.).
The parties briefed the merits of the preliminary
injunction to the Fifth Circuit, and the Fifth Circuit
heard oral argument in early October 2023. See Rob-
inson, 86 F.4th at 586. At the same time, the Middle
District scheduled an expedited three-day hearing to
impose a court-drawn map that would conclude just a
day before the Fifth Circuit held oral argument. In re
Landry, 83 F.4th 300, 304 (5th Cir. 2023). On the
State’s motion, the Fifth Circuit quickly mandamused
the Middle District for failing to honor “the state leg-
islature’s entitlement to attempt to conform the dis-
tricts to the court’s preliminary injunction determina-
tions,” “fors[aking] its duty[,] and plac[ing] the state
at an intolerable disadvantage legally and tactically.”
Id. at 304, 308. Accordingly, the Fifth Circuit granted
“partial mandamus relief,” vacated the Middle Dis-
trict’s “remedial order hearing,” and directed the Mid-
dle District to conduct further scheduling “pursuant to
the principles enunciated” in the Fifth Circuit’s man-
damus opinion. Id. at 305, 308.
 11
After oral argument, the Fifth Circuit merits panel
affirmed that the Middle District’s preliminary injunc-
tion “was valid when it was issued.” Robinson, 86
F.4th at 599. The Fifth Circuit found no clear errors
“in [the Middle District’s] necessary fact-findings nor
… legal error in its conclusions that the Plaintiffs were
likely to succeed on their claim that” HB 1 violated
“Section 2 of the Voting Rights Act.” Id. at 583. Given
the timing, however, the “preliminary injunction, is-
sued with the urgency of establishing a map for the
2022 elections, [was] no longer necessary.” Id. And so,
the Fifth Circuit vacated the preliminary injunction
and “allow[ed] the Louisiana Legislature until Janu-
ary 15, 2024, to enact a new congressional redistrict-
ing plan.” Id. at 601. If the State passed on the oppor-
tunity to draw a new map, then the Middle District
would “conduct a trial and any other necessary pro-
ceedings to decide the validity of the H.B. 1 map, and,
if necessary, to adopt a different districting plan for
the 2024 elections.” Id. at 602. On December 15, 2023,
the Fifth Circuit declined to rehear that case en banc.
Robinson v. Ardoin, No. 22-30333 (5th Cir. Dec. 15,
2023), ECF No. 363-2.
3. The Legislature, seeing the writing on the wall,
heeded the Middle District’s and Fifth Circuit’s call to
action. The Middle District already had enjoined
H.B. 1 once as a likely violation of Section 2, so there
was no serious possibility that taking H.B. 1 to trial
on the merits would result in anything other than a
permanent injunction of H.B. 1 and (worse still, from
the Legislature’s perspective) a court-imposed, two
majority-Black district map for the 2024 election. Opt-
ing to reclaim some semblance of its sovereign right to
 12
draw its own districts, the Legislature took back the
redistricting pen.
On January 8, 2024—the day Governor Landry
(who served as the Louisiana Attorney General during
most of Robinson) took office—he called the Legisla-
ture into session to “legislate relative to the redistrict-
ing of the Congressional districts of Louisiana.”
App.11a. Governor Landry made that call in direct re-
sponse to the Fifth Circuit’s exhortation to act by Jan-
uary 15, 2024, if the Legislature wanted to draw the
map and avoid the Middle District imposing a court-
preferred map: “Let us make the necessary adjust-
ments to heed the instructions of the court. Take the
pen out of the hand of a non-elected judge and place it
in your hands. In the hands of the people. It’s really
that simple.” App.12a.
Governor Landry explained to legislators that leg-
islating a new map would accomplish two things: it
would (1) “satisfy the court” and (2) “ensure that the
congressional districts of our State are made right
here in this Legislature and not by some heavy-
handed federal judge.” Stay App.701. He went on: The
Legislature “[did] not need a federal judge to do for [it]
what the people of Louisiana ha[d] elected [legislators]
to do for them. [The Legislature is] the voice of the peo-
ple and it [was] time that [legislators] use[d] that voice
….” Stay App.701–02. He reminded them that “[t]he
people of this State expect[ed] [their elected officials]
to operate government efficiently and to act within the
compliance of the laws of our nation and of our courts
even when [officials] disagree with both of them.” Stay
App.702.
 13
The Legislature convened one week later on Janu-
ary 15, 2024, the earliest time to do so per the Louisi-
ana Constitution after Governor Landry’s call. See La.
Const. art. III, § 2(B). Once the special session was un-
derway, Attorney General Liz Murrill again explained
to the Legislature: “The Courts … have told us to draw
a new map. And they have indicated that we have a
deadline to do that or Judge Dick will draw the map
for us.” Stay App.701.
4. Six proposed maps were introduced during that
session. Senator Womack, from North Louisiana, in-
troduced S.B. 8—a map with a second majority-Black
district extending from Baton Rouge northwest to Al-
exandria and then to Shreveport. According to Senator
Womack, “[w]hile this is a different map than the
[Robinson] plaintiffs’ litigation have proposed,” S.B. 8
was “the only map” he saw that would satisfy the Rob-
inson courts and “accomplish [his] political goals.”
Stay App.795. Senator Womack and other S.B. 8 sup-
porters 2 explained that S.B. 8’s “congressional voting

2 See App.47a (Senator Price: “Regardless of what you heard,

we are on a court order and we need to move forward. We would
not be here if we were not under a court order to get this done.”);
id. (Senator Fields: “[B]oth the district and the appeals court
have said we need to do something before the next congressional
elections.”); id. (Chairman Beaullieu: “Senator Womack, why are
we here today? What – what brought us all to this special session
as it – as it relates to, you know, what we’re discussing here to-
day?”; Senator Womack: “The middle courts of the district courts
brought us here from the Middle District, and said, ‘Draw a map,
or I'll draw a map.’”; Chairman Beaullieu: “Okay.”; Senator Wom-
ack: “So that’s what we’ve done.”; Chairman Beaullieu: “And –
and were you – does – does this map achieve that middle court’s
orders?”; Senator Womack: “It does.”); App.48a (Senator Wom-
ack: “[W]e all know why we’re here. We were ordered to – to draw
 14
boundaries … best achieve the goals for protecting
Congresswoman Letlow’s seat, maintaining strong
districts for Speaker Johnson and Majority Leader

a new Black district, and that’s what I’ve done.”); Stay App.758
(Senator Womack: “The boundaries in this bill I’m proposing en-
sure that Congresswoman Letlow remains both unimpaired with
any other incumbents and in a congressional district that should
continue to elect a Republican to Congress for the remainder of
this decade.”); Stay App.781 (Senator Stine: “This map … safe-
guards the positions of pivotal figures, the United States Speaker
of the House, the majority leader, and notably, the sole female
member of our congressional delegation. Her role is not merely
symbolic. She is a lynchpin in the appropriations, education, and
workforce committees which are vital to the prosperity and well-
being of our state…. It’s about ensuring our state’s continued in-
fluence in the halls of power where decisions are made that affect
every citizen we represent.”); Stay App.761 (Senator Cloud: “As a
Republican woman, I want to stand here -- or sit here, rather, and
offer my support for the amendment to the map, which I believe
further protects Congresswoman Julia Letlow. She is the only
woman in the Louisiana’s congressional district. She is a member
of the Appropriations Committee in the US House, as Senator
Womack stated, and also a member of the Agricultural Commit-
tee in the US House. It’s -- it’s important to me and all of the
other residents of our area that -- to have these two representa-
tives from our crucial region in our state. I think that politically,
this map does a great job protecting Speaker Johnson and Con-
gresswoman Julia Letlow as well as Majority Leader Scalise.”);
Stay App.795 (Senator Womack: “[T]he map and the proposed bill
ensures that four are safe Republican seats. Louisiana’s Repub-
lican presen[ce] in the United States Congress has contributed
tremendously to the national discourse. And I’m very proud that
both Speaker of the US House of Representatives, Mike Johnson,
and US House Majority Leader Steve Scalise are both from our
great state. This map ensures that the two of them will have sol-
idly Republican districts at home so that they can focus on the
national leadership that we need in Washington, DC.”); Stay
App.861–62 (Representative Beaullieu: same).
 15
Scalise, ensuring four Republican districts, and adher-
ing to the command of the Federal Court in the Middle
District of Louisiana. Id.
And so the Legislature decided on S.B. 8 to avoid a
court-imposed map and to maintain the Legislature’s
own political objectives. On Friday, January 19, 2024,
the Legislature enacted S.B. 8. App.15a. The Governor
signed the bill three days later. Id.
B. Procedural Background
1. But this redistricting nightmare was only begin-
ning. A little over a week after S.B. 8 became law, the
Secretary of State was sued again—this time by a set
of Plaintiffs in this case seeking to enjoin S.B. 8 for the
2024 congressional elections and beyond. See generally
Stay App.1–32. Like the Hays Plaintiffs before them,
the Callais Plaintiffs brought their suit in the Western
District of Louisiana and alleged that S.B. 8 was a ra-
cial gerrymander that violated the Equal Protection
Clause. Id. A three-judge panel was convened.
App.18a–19a. On February 7, 2024, Plaintiffs moved
to preliminarily enjoin S.B. 8. See generally Stay
App.1–77. The State, through Attorney General Mur-
rill, then intervened as defendant, App.17a, as did the
plaintiffs from Robinson.
The Western District held a three-day trial on the
merits from April 8–10, 2024. At trial, even Plaintiffs’
own witnesses, including legislators who opposed S.B.
8, recognized the Legislature’s predicament: draw a
second majority-Black district or let the Middle Dis-
trict do it. See, e.g., App.53a (Senator Seabaugh:
“[R]eally, the only reason we were there was because
of the other litigation; and Judge Dick saying that she
 16
– if we didn’t draw the second minority district, she
was going to. I think that’s the only reason we were
there.”); id. (Senator Pressly: “We were told that we
had to have two performing African American dis-
tricts. And that we were – that that was the main
tenet that we needed to look at and ensure that we
were able to draw the court – draw the maps; other-
wise, the Court was going to draw the maps for us.”).
2. On April 30, 2024, the majority held, over Judge
Stewart’s dissent, that race was the Legislature’s pre-
dominant consideration in enacting S.B. 8 and that its
consideration of race did not satisfy strict scrutiny.
Stay App.67a–68a. The Western District then en-
joined the use of S.B. 8 in any election, leaving Louisi-
ana without a congressional map. Id. After the State
filed a notice of appeal and the district court refused
to stay its injunction, the State sought a stay of the
injunction pending appeal, which this Court granted
on May 15, 2024, pending the timely filing of a juris-
dictional statement. Landry v. Callais, No. 23A1002
(U.S.).

REASONS FOR NOTING PROBABLE

JURISDICTION
“Redistricting constitutes a traditional domain of
state legislative authority.” Alexander, 144 S. Ct. at
1233. Indeed, because of the complexities that factor
into redistricting, the Court has “repeatedly empha-
sized that federal courts must ‘exercise extraordinary
caution in adjudicating claims that a State has drawn
district lines on the basis of race.’” Id. at 1233–34. And
that extraordinary caution should be even more acute
in a case, like this one, that is “anything but a ‘usual’
 17
racial gerrymandering case.” App.70a (Stewart, J.,
dissenting).
Respectfully, the majority below failed to exercise
the requisite caution, and there are at least four fun-
damental errors that warrant reversal. First, the ma-
jority misapplied the predominance standard and in-
correctly found predominance. Second, the majority
erroneously found that S.B. 8 fails strict scrutiny.
Third, the majority—in an unprecedented move—im-
properly required the State to satisfy Gingles even
though S.B. 8 was enacted in response to federal court
findings that Gingles already had been satisfied. And
fourth, Plaintiffs’ claims are non-justiciable. The
Court should note probable jurisdiction and reverse.
I. THE MAJORITY ERRED IN FINDING THAT RACE
PREDOMINATED IN THE LEGISLATURE’S ENACT-
MENT OF S.B. 8.

The majority erred from top to bottom of the con-

stitutional analysis. At the top of the analysis, Plain-
tiffs were “require[d]” to “show that race was the ‘pre-
dominant factor motivating the legislature’s decision
to place a significant number of voters within or with-
out a particular district.’” Alexander, 144 S. Ct. at
1234. “To make that showing a plaintiff must prove
that the State ‘subordinated’ race-neutral districting
criteria such as compactness, contiguity, and core
preservation to ‘racial considerations.’” Id. “Racial
considerations predominate when ‘[r]ace was the cri-
terion that, in the State’s view, could not be compro-
mised’ in the drawing of district lines.” Id. (emphasis
added). And “‘[a]s a practical matter,’ challengers will
 18
often need to show that the State’s chosen map con-
flicts with traditional redistricting criteria”—in which
case only then can race plausibly be considered “‘the
overriding factor.’” Id. That is an impossible burden
for Plaintiffs to carry here, and the district court badly
erred in holding otherwise.
A. Start with why this is an impossible burden for
Plaintiffs: The predominant factor motivating the Leg-
islature’s decision to enact S.B. 8 was an order from
the Middle District of Louisiana, followed by an affir-
mance from a unanimous Fifth Circuit panel, each
holding that, unless two of the State’s six congres-
sional districts are majority-Black, the State would
likely violate Section 2 of the VRA. Race was thus not
a motivating factor for the Legislature at all. (After all,
the State had spent the better part of two years oppos-
ing the consideration of race in defending H.B. 1 in the
Robinson litigation.) It was the Middle District that
made a race-based decision by requiring two majority-
Black districts, and it was the Fifth Circuit that af-
firmed that decision. The Legislature had no say in
that decision. All considerations of race, therefore,
stem from the federal court decisions that impelled
S.B. 8—not the Legislature. 3
Given this procedural backdrop, it is no surprise
that virtually every legislator (and the Governor and

3 Should the Court believe that a second majority-Black dis-

trict is not in fact required by the VRA, the State would welcome
such a conclusion since that is the position it urged before the
Middle District, the Fifth Circuit, and this Court over the past
three years. The Robinson docket and the docket in this case pro-
vide more than a sufficient basis to make that determination.
 19
the Attorney General) proceeded from that court-im-
posed baseline: Two majority-Black districts are man-
dated by the VRA. The Governor said, “Let us make
the necessary adjustments to heed the instructions of
the court.” Stay App.880. And legislator after legisla-
tor said things like:
• “We all know that we’ve been ordered by the
court that we draw [a] congressional [map] with
two minority districts. This map will comply
with the order of both the Fifth Circuit Court of
Appeal and the district court. They have said
that the legislature must pass a map that has
two majority black districts.”

• [R]eally, the only reason we were there was be-

cause of the other litigation; and Judge Dick
saying that she—if we didn’t draw the second
minority district, she was going to.”

• “We were told that we had to have two perform-

ing African American districts.”
App.52a–53a (collecting examples).
Turning the courts’ race-based dictate back on the
Legislature would be a wholly unfair game of gotcha
that this Court has never endorsed. Plaintiffs’ burden
is to prove that “race was the predominant factor mo-
tivating the legislature’s decision.” Cooper, 581 U.S. at
291 (emphasis added) (quoting Miller v. Johnson, 515
U.S. 900, 916 (1995)); see also Alexander, 144 S. Ct. at
1233 (“if a legislature gives race a predominant role”
(emphasis added)). But here, the Legislature did not
randomly wake up in a special session in January and
decide to draw a second majority-Black district. To the
 20
contrary, the Legislature’s first preference (H.B. 1)
was manifestly not to employ heavy-handed consider-
ations of race—but the federal courts would not permit
that desire to stand. That racial consideration thus be-
longs to the Robinson courts, not to the Legislature.
Put otherwise, the use of race here was hardly the Leg-
islature’s objective—and indeed was over the Legisla-
ture’s specific objection in the Robinson litigation. As
a result, Plaintiffs failed to show predominance.
That is especially so given that—as the court below
freely “acknowledge[d]”—the Legislature drew S.B. 8
based on political considerations untethered from the
Robinson courts’ race-based consideration. App.48a–
49a (collecting examples); see also App.40a (majority
stating “[i]t is clear from the record and undisputed
that political considerations—the protection of incum-
bents—played a role in how District 6 was drawn”).
For example, numerous legislators explained and tes-
tified that S.B. 8 was intended to protect House
Speaker Mike Johnson, House Majority Leader Steve
Scalise, and Representative Julia Letlow (who sits on
the powerful Appropriations Committee). App.48a–
49a. That the Legislature took full advantage of non-
racial considerations on which the Robinson courts did
not tie the Legislature’s hands thus underscores that
the Robinson decisions forced the Legislature’s hand
in drawing a second majority-Black district. See Stay
App.779 (S.B. 8 sponsor stating: “I firmly submit that
the congressional voting boundaries represented in
this bill best achieve the goals of protecting Congress-
woman Letlow’s seat, maintaining strong districts for
Speaker Johnson and Majority Leader Scalise, ensur-
 21
ing four Republican districts, and adhering to the com-
mand of the Federal Court in the Middle District of
Louisiana.”).
B. Without apparent irony, the majority below
cited all of this evidence to conclude that race predom-
inated in the Legislature’s decision to enact S.B. 8. See
App.49a n.10 (“[T]he Court finds that District 6 was
drawn primarily to create a second majority-Black dis-
trict that [the Legislature] predicted would be ordered
in the Robinson litigation after a trial on the merits.
Thus, it is clear that race was the driving force and
predominant factor behind the creation of District 6.”).
Of course race motivated S.B. 8 at some level. What
the majority failed to recognize, however, is that the
Robinson courts ordered the use of race in redistrict-
ing in this case—not the Legislature. But for the Rob-
inson decisions, the Legislature never would have re-
pealed H.B. 1 and enacted S.B. 8. Remember, the
State fought for H.B. 1 in the Robinson litigation all
the way up to this Court. To the majority, however,
none of that mattered.
This points up an even deeper doctrinal problem
with the majority’s decision. By the majority’s logic, a
State could never survive a predominance analysis
when attempting to remedy a VRA violation by draw-
ing a required majority-Black district. That is because
such a remedy would always require the legislature to
start from the premise that it must create a majority-
Black district—a premise that the majority deemed to
flunk the predominance inquiry. That is wrong. This
Court has long made clear that strict scrutiny is not
trigged simply because “redistricting is performed
with consciousness of race,” “[n]or does it apply to all
 22
cases of intentional creation of majority-minority dis-
tricts.” Bush v. Vera, 517 U.S. 952, 958 (1996) (plural-
ity op.); see also Easley v. Cromartie, 532 U.S. 234,
253–54 (2001). If those principles remain true, then
the Louisiana Legislature’s creation of a second ma-
jority-Black district—at the behest of the federal
courts—tilts the predominance inquiry in the State’s
favor.
This error, too, resolves the majority’s accusation
that “the State first made the decision to create a ma-
jority-Black district and, only then, did political con-
siderations factor into the State’s creation of District
6.” App.49a. For one, the federal courts—not the
State—functionally “made the decision to create a ma-
jority-Black district.” For another, as cases like Bush
illustrate, strict scrutiny is not automatically trig-
gered even where a State is “committed from the out-
set to creating majority-minority districts.” 517 U.S.
at 962 (plurality op.); see also id. (“We do not hold that
any one of these factors is independently sufficient to
require strict scrutiny.”). Instead, strict scrutiny ap-
plies only where all other factors are “subordinated to
race.” Id. And if anything is clear from this record, it
is that the Legislature refused to pursue just any sec-
ond majority-Black district required by the courts; in-
stead, S.B. 8’s precise shape is the product of conced-
edly political goals that the legislators believed could
be accomplished only through S.B. 8 as opposed to
other maps. In other words, race (even as required by
the courts) was at most a co-equal consideration with
political and other factors, if not subordinate to the
Legislature’s overarching political agenda.
 23
One final error worth noting: The majority found it
“not credible that Louisiana’s majority-Republican
Legislature would choose to draw a map that elimi-
nated a Republican-performing district for predomi-
nantly political purposes.” App.49a n.10. Respectfully,
that finding makes no sense. The Legislature did not
eliminate a Republican-performing district merely for
political purposes; it did so because the courts forced
the Legislature to create a second majority-Black dis-
trict. It was only then, in carrying out that directive,
that the Legislature heavily weighted its political
goals to draw the S.B. 8 map. In reasoning otherwise,
the majority completely misunderstood the relevant
role of politics in the analysis.
C. At the stay stage, Plaintiffs attempted to insu-
late the majority’s predominance errors from this
Court’s review by invoking the clear-error standard.
Callais Stay Opp. at 14 (“[A]s long as the District
Court’s finding that race predominated in the Legisla-
ture’s drawing of SB8 is plausible, this Court may not
reverse that finding.”). But this Court subsequently
rejected this tactic, for “there is a special danger that
a misunderstanding of what the law requires may in-
fect what is labeled a finding of fact.” Alexander, 144
S. Ct. at 1240. Indeed, “‘if a trial court bases its find-
ings upon a mistaken impression of applicable legal
principles, the reviewing court is not bound by the
clearly erroneous standard.’” Id. And that matters
here because “the standard of proof that the three-
judge court was required to apply, i.e., the racial-pre-
dominance test, has a very substantial legal compo-
nent that must take account of our prior relevant de-
cisions.” Id. Plaintiffs’ attempt to hide the district
 24
court’s errors behind the clear-error standard thus
fails.
For all of these reasons, the majority erred in find-
ing predominance, which independently warrants re-
versal.
II. THE MAJORITY ERRED IN FINDING THAT S.B. 8
FAILS STRICT SCRUTINY.
Even if Plaintiffs had “demonstrate[d] that race
drove the mapping of district lines,” Alexander, 144
S. Ct. at 1236, the majority independently erred in de-
termining that S.B. 8 fails strict scrutiny. See Be-
thune-Hill, 580 U.S. at 193 (“Where a challenger suc-
ceeds in establishing racial predominance, the burden
shifts to the State to ‘demonstrate that its redistrict-
ing legislation is narrowly tailored to achieve a com-
pelling interest.’” (quoting Miller, 515 U.S. at 920)).
A. To start, no one disputes that the State has a
compelling interest in complying with the VRA. Even
the majority below “assume[d], without deciding”—
just as this Court has done for many years—“that com-
pliance with Section 2 was a compelling interest for
the State to attempt to create a second majority-Black
district in the present case.” App.53a; see also, e.g.,
Ala. Legislative Black Caucus v. Alabama, 575 U.S.
254, 275–79 (2015); Shaw v. Hunt, 517 U.S. 899, 915
(1996). And that understates the strength of the
State’s position here. That is because, unlike States in
other cases, the State here did not seek to comply with
the VRA in the abstract; it sought to comply with the
Middle District’s and Fifth Circuit’s decisions that
themselves established what (in those courts’ view)
 25
VRA compliance likely required—namely, two major-
ity-Black districts. If VRA compliance itself is a com-
pelling interest, then compliance with court orders
telling a State how to comply with the VRA is a com-
pelling interest, too. So unless this Court disagrees
with the Fifth Circuit’s analysis in Robinson and in-
stead agrees with the State’s position in that litiga-
tion, it necessarily follows that the State’s enactment
of S.B. 8 served a compelling State interest.
B. Nor is there any serious dispute that S.B. 8 is
narrowly tailored to achieve that interest. This Court
has made clear that, in this context, “the narrow tai-
loring requirement insists only that the legislature
have a strong basis in evidence in support of the (race-
based) choice that it has made.” Bethune-Hill, 580 U.S.
at 193. That standard is flexible by design—to give
States “breathing room” to navigate “the ‘competing
hazards of liability’ under the Voting Rights Act and
the Equal Protection Clause.” Id. at 196 (citation omit-
ted).
The State has that evidence here in spades. Specif-
ically, the Middle District expressly held that H.B. 1’s
failure to include a second majority-Black district
likely violated the VRA. Robinson, 605 F. Supp. 3d at
766. And the Fifth Circuit affirmed that analysis,
holding that the Middle District “did not clearly err in
its necessary fact-findings nor commit legal error in its
conclusions that the Plaintiffs were likely to succeed
on their claim” that H.B. 1 violated Section 2. Robin-
son, 86 F.4th at 583. The legislative record and trial
testimony, moreover, unambiguously demonstrate
(and Plaintiffs do not dispute) that the Louisiana Leg-
islature sought to appease the Robinson courts—and
 26
forestall a court-imposed map—by adopting its own
map with a second majority-Black district. If that is
not the strongest basis in evidence to support S.B. 8,
then it is difficult to imagine what would be.
The majority below acknowledged all of this, but
never resolved the State’s argument—which, if re-
solved in the State’s favor, would be game over. In-
stead, the majority reasoned that “whether District 6,
as drawn, is ‘narrowly tailored requires the Court to
address the Gingles factors as well as traditional dis-
tricting criteria.” App.54a–55a. And the majority con-
cluded the State “simply has not met its burden of
showing that District 6 satisfies the first Gingles fac-
tor—that the ‘minority group is sufficiently large and
geographically compact to constitute a majority in a
reasonably configured district.’” App.58a. In the ma-
jority’s view, S.B. 8 also “fails to comport with tradi-
tional districting principles.” Id. In addition to the
court’s mistaken invocation of Gingles, see infra Sec-
tion III, there are at least two flaws in that reasoning.
First, it is directly contrary to this Court’s teaching
in Bethune-Hill—that “the narrow tailoring require-
ment insists only that the legislature have a strong
basis in evidence in support of the (race-based) choice
that it has made.” 580 U.S. at 193 (emphasis added).
If “only” indeed means “only,” then the majority below
improperly grafted entirely new requirements onto
the “strong basis in evidence” standard.
Second, the majority below ignored the reality that
it is impossible to draw a second majority-Black dis-
trict in Louisiana that looks “better” than District 6 in
the S.B. 8 map. As Plaintiffs have urged this Court,
their expert “testified that it is impossible to draw a
 27
second majority-minority congressional district with-
out violating traditional redistricting criteria.” Callais
Stay Opp. at 18–19; see also id. at 36 (citing evidence
from their experts that “the Black population was too
widely scattered outside of Southeast Louisiana to
draw another district”); id. at 39 (“[Plaintiffs’] experts
showed that given the dispersion of Black voters
across the State, any Black voters in District 6 were
not sufficiently numerous or geographically compact
to draw a second majority-minority district.”).
Plaintiffs’ confident proclamations are reflected in
the majority’s own decision. The majority credited
Plaintiffs’ expert’s testimony “that outside the New
Orleans and East Baton Rouge areas, the Black popu-
lation is highly dispersed across the state” and that,
because of “this dispersion, it is impossible to draw a
second majority-minority congressional district with-
out violating traditional redistricting criteria.”
App.33a–34a. And the majority further emphasized
that, because of this dispersion, the State was “re-
quired … to draw District 6 as a ‘bizarre’ 250-mile-long
slash-shaped district that functions as a majority-mi-
nority district only because it severs and absorbs ma-
jority-minority neighborhoods from cities and parishes
all the way from Baton Rouge to Shreveport.” App.58a.
As Plaintiffs recently told this Court, “[t]he District
Court was convinced by the massive weight of evi-
dence … : ‘The record reflects that, outside of south-
east Louisiana, the State’s Black population is dis-
persed.’” Callais Stay Opp. at 39. In Plaintiffs’ words,
 28
“Plaintiffs have already shown that the Black popula-
tion is too dispersed outside of Southeast Louisiana to
draw another Black-majority district.” Id. at 41. 4
Now, despite all this, the majority tried to back-
track on the issue by stating at the end of its opinion:
“[T]his Court does not decide on the record before us
whether it is feasible to create a second majority-Black
district in Louisiana that would comply with the
Equal Protection Clause of the Fourteenth Amend-
ment.” App.66a. But, as Judge Stewart recognized,
“the context underlying this case in conjunction with
[the majority’s] holding functionally answers that
question.” Id. at 146a (Stewart, J., dissenting); see also
id. at 146a–47a (“[A]re we not essentially telling the
State that it is incapable of doing the job it is tasked
with under the United States and Louisiana constitu-
tions?”).
In all events, if the State cannot actually draw a
second majority-Black district consistent with the
Equal Protection Clause, then the Robinson courts
forced the State to commit a constitutional violation.
And even if the State hypothetically could draw such
a district (contrary to Plaintiffs’ expert’s testimony),
nothing in this Court’s precedents forecloses the Leg-
islature’s selection of S.B. 8, which the Legislature

4As noted above, the State maintained throughout the Rob-

inson litigation that the VRA did not require a second majority-
Black district. A significant reason for that position is that, math-
ematically, there is simply not enough population in East Baton
Rouge to create a majority in a second majority-Black district.
That is why every map in both this case and Robinson that cre-
ated a second majority-Black district drew in population from ei-
ther Monroe and the Delta Parishes (i.e., northeast Louisiana) or
the Shreveport metropolitan area (i.e., northwest Louisiana).
 29
“reasonabl[y]” deemed necessary to protect its political
goals, Cooper, 581 U.S. at 293.
This last point warrants one further note on this
Court’s redistricting jurisprudence: The entire point of
the “strong basis in evidence” standard is to give
States “breathing room” between the demands of the
Fourteenth Amendment and the VRA. Bethune-Hill,
580 U.S. at 196. But if the State is deemed to have
violated the Fourteenth Amendment by adding a sec-
ond majority-Black district in S.B. 8—after being told
by the Middle District and the Fifth Circuit that the
VRA likely mandated a second majority-Black dis-
trict—there is no oxygen in that room.
C. At the stay stage, Plaintiffs attempted to short-
circuit the strict scrutiny analysis by claiming that the
State was never actually subject to any pressure to
create a second majority-Black district: “The Fifth Cir-
cuit never ordered the State to create two majority-
Black districts, and it vacated any order that may
have been imposed by the Middle District.” Callais
Stay Opp. at 25. This is all “a paper tiger,” said Plain-
tiffs, and thus the State “doesn’t deserve breathing
room.” Id. at 26.
Respectfully, Plaintiffs’ characterizations are not
true. The Middle District’s order minced no words
when enjoining Louisiana’s original map: “The appro-
priate remedy in this context is a remedial congres-
sional redistricting plan that includes an additional
majority-Black congressional district.” Robinson, 605
F. Supp. 3d at 766. The Fifth Circuit also minced no
words in affirming that “[t]he district court’s prelimi-
nary injunction … was valid when it was issued.” Rob-
inson, 86 F.4th at 599. Plaintiffs’ protest that the Fifth
 30
Circuit also “vacated” the Middle District’s order omits
that (a) the Fifth Circuit did so on procedural grounds
only after affirming the Middle District’s order on the
merits and (b) the Fifth Circuit remanded with in-
structions to allow the Legislature meaningful time to
enact a remedial map—an instruction that makes
sense only if, as both courts held, a second majority-
Black district was required. Id. at 601.
Plaintiffs also misapprehend the Middle District’s
avowed intent to place the State under a court-im-
posed, two majority-Black district map. As the Fifth
Circuit recounted in issuing extraordinary mandamus
relief during the Robinson appeals, the Middle District
was “[u]ndeterred by the pendency of appeal on the
merits” and “opted to go ahead … with an expedited
hearing to determine a court-ordered redistricting
map.” In re Landry, 83 F.4th at 304. A paper tiger this
was not.
For all these reasons, the majority wrongly held
that S.B. 8 fails strict scrutiny.
III. THE MAJORITY ERRONEOUSLY IMPORTED GIN-
GLES INTO THE STRICT SCRUTINY ANALYSIS.

One key—and confounding—error in the majority’s

strict-scrutiny analysis warrants special emphasis.
Specifically, the majority reasoned that “the State
simply has not met its burden of showing that District
6 satisfies the first Gingles factor—that the ‘minority
group [is] sufficiently large and [geographically] com-
pact to constitute a majority in a reasonably config-
ured district.” App.57a; see also id. at 64a (“[T]he
Court finds that SB8’s District 6 does not satisfy the
‘geographically compact’ and ‘reasonably configured’
 31
Gingles requirement.”); id. at 66a (“District 6 does not
satisfy the first Gingles precondition nor does it com-
ply with traditional districting principles.”); id. at
54a–55a (“[W]hether District 6, as drawn, is ‘narrowly
tailored’ requires the Court to address the Gingles fac-
tors as well as traditional districting criteria.”).
Respectfully, that makes no sense. The so-called
Gingles factors are a creature of this Court’s VRA Sec-
tion 2 jurisprudence. See Cooper, 581 U.S. at 301. In-
deed, those factors comprise a Section 2 plaintiff’s bur-
den “for proving vote dilution” under Section 2. Id.
They are generally thus fish out of water in, as here,
the racial-gerrymandering context. The closest the
Court has come to collapsing the two contexts is to say
in Cooper that, “[i]f a State has good reason to think
that all the ‘Gingles preconditions’ are met, then so too
it has good reason to believe that § 2 requires drawing
a majority-minority district.” Id. at 302; id. (“But if
not, then not.”). Thus, in cases like Cooper where a
State cites Section 2 compliance to defend against a
racial-gerrymandering claim, this Court has used Gin-
gles to determine the validity of that defense.
But this case presents markedly different facts
that warrant a markedly different approach. In par-
ticular, both the Middle District and the Fifth Circuit
already had determined that the Gingles factors were
satisfied, thus likely mandating the drawing of a sec-
ond majority-Black district as a remedy for the alleged
Section 2 violation. See Robinson, 86 F.4th at 589–99
(affirming the Middle District’s Gingles findings
across the board). Against that backdrop, it would be
passing strange to subject the State’s attempted rem-
edy to Gingles all over again. After all, the State need
 32
only show it “has ‘good reasons to believe’ it must use
race in order to satisfy the Voting Rights Act,” regard-
less whether a court believes “‘the actions were neces-
sary for statutory compliance.’” Bethune-Hill, 580 U.S.
at 194; see also LULAC v. Perry, 548 U.S. 399, 506
(2006) (Roberts, C.J., concurring in part, concurring in
the judgment in part, and dissenting in part) (“Far
from imposing a freestanding compactness obligation
on the States, we have repeatedly emphasized that
‘States retain broad discretion in drawing districts to
comply with the mandate of § 2.’”). Again, the State
had the best of reasons to believe that its creation of a
second majority-Black district was likely compelled by
VRA Section 2: The Middle District and the Fifth Cir-
cuit said so.
The Court should thus reverse based on the major-
ity’s mistaken attempt to relitigate Gingles.
IV.PLAINTIFFS’ CHALLENGE IS NON-JUSTICIABLE.
Finally, the foregoing analyses demonstrate that
this case is a poster child for why constitutional racial-
gerrymandering and vote-dilution claims are non-jus-
ticiable.
As Justice Thomas recently explained, this Court’s
precedents “stand for the rule that States must con-
sider race just enough in drawing districts.” Alexan-
der, 144 S. Ct. at 1267 (Thomas, J., concurring in
part). But “what ‘just enough’ means depends on a fed-
eral court’s answers to judicially unanswerable ques-
tions about the proper way to apply the State’s tradi-
tional districting principles, or about the groupwide
preferences of racial minorities in the State.” Id.
 33
This case illustrates this “lose-lose situation.” Id.
The Legislature had to consider race in seeking to
remedy the perceived Section 2 violation identified by
the Middle District and the Fifth Circuit. See Robin-
son, 605 F. Supp. 3d at 766 (“The appropriate remedy
in this context is a remedial congressional redistrict-
ing plan that includes an additional majority-Black
congressional district.”). And that is what the legisla-
tors did when they sought to carry out the Robinson
courts’ mandate. By the lights of the majority below,
however, the Legislature considered race too much.
But, if the majority were correct, how could the Legis-
lature know when its consideration of race exceeded
the “just enough” threshold? By all accounts, the race
issue was largely beside the point since everyone un-
derstood the Robinson courts’ directive; the principal
discussion instead centered on how to accomplish leg-
islators’ political goals in the process. And so, again,
how could the Legislature know that, even still, its
consideration of race purportedly was too high?
It is not hyperbole to say that this Court’s prece-
dents have placed States in “an untenable position,”
forcing them “to thread the impossible needle” created
by those precedents. Alexander, 144 S. Ct. at 1267
(Thomas, J., concurring in part). Cases like this illus-
trate that there is seemingly no end to the torture-by-
litigation that States endure after every redistricting
cycle. Accordingly, this case presents a persuasive ve-
hicle for determining whether this litigation belongs
in court to begin with. It does not.
 34
CONCLUSION
The Court should note probable jurisdiction and re-
verse.

Respectfully submitted,

ELIZABETH B. MURRILL J. BENJAMIN AGUIÑAGA

Attorney General Solicitor General
LOUISIANA DEPARTMENT OF Counsel of Record
JUSTICE MORGAN BRUNGARD
1885 N. Third St. Deputy Solicitor General
Baton Rouge, LA 70802
(225) 506-3746
[email protected]
APPENDIX
 i

TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES DISTRICT COURT
FOR T H E W EST ERN DIST RICT OF
LOUISIANA, MONROE DIVISION, FILED
APRIL 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — THE STATE OF LOUISIANA’S

A ND SECRETA RY OF STATE’S
AMENDED NOTICE OF APPEAL, FILED
MAY 7, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147a
 1a

APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF LOUISIANA, MONROE DIVISION,
FILED APRIL 30, 2024
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
CIVIL DOCKET NO. 3:24-CV-00122 DCJ-CES-RRS
THREE-JUDGE COURT

PHILLIP CALLAIS, ET AL

VERSUS

NANCY LANDRY, IN HER OFFICIAL CAPACITY

AS LOUISIANA SECRETARY OF STATE

INJUNCTION AND REASONS FOR JUDGMENT

Opinion of the Court by David C. Joseph and

Robert R. Summerhays, District Judges.

The present case involves a challenge to the current

congressional redistricting map enacted in Louisiana on
the grounds that one of the congressional districts created
by the Louisiana State Legislature — District 6 — is
an impermissible racial gerrymander in violation of the
Equal Protection Clause of the Fourteenth Amendment.
This challenge reflects the tension between Section 2 of
the Voting Rights Act and the Equal Protection Clause.
The Voting Rights Act protects minority voters against
dilution resulting from redistricting maps that “crack”
 2a

Appendix A

or “pack” a large and “geographically compact” minority

population. On the other hand, the Equal Protection
Clause applies strict scrutiny to redistricting that is
grounded predominately on race.

The challenged Louisiana redistricting scheme

originated in response to litigation brought under Section
2 of the Voting Rights Act in a separate suit filed in the
United States District Court for the Middle District of
Louisiana, challenging Louisiana’s prior redistricting
scheme under Section 2 of the Voting Rights Act. Robinson,
et al v. Ardoin, No. 3:22-cv-211; consolidated with Galmon
et al v. Ardoin, No. 3:22-cv-214 (M.D. La.) (“Robinson
Docket”). There, the district court concluded that the
Robinson plaintiffs were likely to succeed on the merits
of their claim that Louisiana’s prior redistricting plan
violated Section 2 of the Voting Rights Act. In response,
the Legislature adopted the present redistricting map
(created by Senate Bill 8) (“SB8”), which established a
second majority-Black congressional district to resolve
the Robinson litigation. The plaintiffs here then filed
the present case challenging this new congressional map
on the grounds that the second majority-Black district
created by the Legislature violates the Equal Protection
Clause.

This matter was tried before the three-judge panel

from April 8-10, 2024. Having considered the testimony
and evidence at trial, the arguments of counsel, and the
applicable law, we conclude that District 6 of SB8 violates
the Equal Protection Clause. Accordingly, the State is
enjoined from using SB8 in any future elections. The
 3a

Appendix A

Court’s Opinion below constitutes its findings of fact and

conclusions of law. The Court sets a status conference with
all parties to discuss the appropriate remedy.

I.

Procedural A nd Historical Background

A. The Hays Litigation

“Those that fail to learn from history are

doomed to repeat it.”

- Winston Churchill

Following the 1990 census, the Louisiana State

Legislature (the “Legislature”) enacted Act 42 of 1992,
which created a new congressional voting map. Prior to the
Act 42 map, Louisiana had seven congressional districts,
one of which included a majority-Black voting population.
Act 42 created a second majority-Black district. The
existing majority-Black district encircled New Orleans,
and the other, new one, “[l]ike the fictional swordsman
Zorro, when making his signature mark, ... slash[ed] a
giant but somewhat shaky ‘Z’ across the state.” Hays
v. State of La., 839 F. Supp. 1188, 1199 (W.D. La. 1993),
vacated sub nom. Louisiana v. Hays, 512 U.S. 1230, 114
S. Ct. 2731, 129 L.Ed.2d 853 (1994) (“Hays I”).

Several voters challenged the scheme. After a trial,

a three-judge panel of the Western District of Louisiana
concluded that Act 42’s plan violated the Equal Protection
 4a

Appendix A

Clause of the Fourteenth Amendment of the United States

Constitution, and accordingly enjoined the use of that plan
in any future elections. Id. In 1993, while an appeal of the
district court’s findings in Hays I was pending before
the Supreme Court of the United States, the Legislature
repealed Act 42 and passed Act 1, creating a new map.
Hays v. State of La., 862 F. Supp. 119, 125 (W.D. La. 1994),
aff’d sub nom. St. Cyr v. Hays, 513 U.S. 1054, 115 S. Ct.
687, 130 L.Ed.2d 595 (1994), and vacated sub nom. United
States v. Hays, 515 U.S. 737, 115 S. Ct. 2431, 132 L.Ed.2d
635 (1995) (“ Hays II”).

The 1993 map, like the 1992 map, had two majority-
African American districts. Id. One encircled New
Orleans, while the other was long and narrow and slashed
250 miles in a southeasterly direction from Shreveport
down to Baton Rouge. This district was described as
resembling “an inkblot which has spread indiscriminately
across the Louisiana map.” Id.

]
 5a

Appendix A

PE22 (Map from Hays II).

The Supreme Court vacated Hays I and remanded

the case for further proceedings in light of the passage
of Act 1. See Louisiana v. Hays, 512 U.S. 1230, 114 S. Ct.
2731, 129 L.Ed.2d 853 (1994). The panel of our colleagues
making up that three-judge court determined that the
Legislature had once again allowed race to predominant
in the map’s creation and declared Act 1 unconstitutional.
Hays II at 121. The case was again appealed to the
Supreme Court. Without addressing the merits of the
case, the Supreme Court determined that the plaintiffs
lacked standing to challenge Act 1 as they did not reside
in the challenged district. United States v. Hays, 515 U.S.
737, 115 S. Ct. 2431, 132 L.Ed.2d 635 (1995).

On remand, the three-judge panel permitted an

amended complaint to address the standing issue. The
court then reiterated its findings from Hays II that Act
1 constituted a racial gerrymander and was not narrowly
tailored to further a compelling state interest. The court
therefore found that Act 1 violated the Equal Protection
Clause of the Fourteenth Amendment of the United
States Constitution and ordered the state to implement a
redistricting plan drawn by the court. Hays v. Louisiana,
936 F. Supp. 360 (W.D. La. 1996) (“Hays III”).

B. 2020 Census and Events Leading up to the Robinson

Litigation

Based on the 2020 Census, Louisiana’s population

stood at 4,657,757 with a voting-age population of
 6a

Appendix A

3,570,548. JE6; JE15. As a result, the state qualified

for six congressional districts — one less district than
it had during the Hays litigation, but the same number
it was allotted after the 2010 Census. JE15. Prior to the
start of the legislative session on redistricting, members
of the Legislature traveled across the state conducting
public hearings, called “roadshows,” to give the public
the opportunity to voice their views on the redistricting
process. See JE-3; see also Tr., Vol. III, 513:14-514:17.
The roadshows were “designed to share information
about redistricting and solicit public comment and
testimony.” Robinson v. Ardoin, 605 F.Supp.3d 759, 767
(M.D. La. 2022), cert. granted before judgment, 142 S.
Ct. 2892, 213 L.Ed.2d 1107 (2022), and cert. dismissed as
improvidently granted, 143 S. Ct. 2654, 216 L.Ed.2d 1233
(2023), and vacated and remanded, 86 F.4th 574 (5th Cir.
2023) (“Robinson Injunction Ruling”).

The Louisiana Senate Governmental Affairs and

House Governmental Affairs conducted ten hearings as
part of the roadshow across the state. Tr., Vol. II, 476:18-
25; Tr., Vol. III, 513:18-514:7. These hearings allowed
citizens to testify on their redistricting preferences. Id.
Senator Royce Duplessis, who served as Vice Chair of the
House and Governmental Affairs Committee at the time,
attended the roadshows and testified that “the purpose
of the road shows was to give the public the opportunity
to share their thoughts and what they wanted to see in
redistricting.” Tr., Vol. III, 514:8-17.

Louisiana ultimately enacted a new congressional

map, created by House Bill 1 (“HB1”), on March 31, 2022.
 7a

Appendix A

JE1. As with Louisiana’s prior congressional map, HB1

had one majority-Black district. Louisiana Governor John
Bel Edwards vetoed HB1, but the Legislature overrode
that veto. Robinson Injunction Ruling at 767.

2022 Enacted Map (JE16).

C. The Robinson Litigation

On the same day that HB1 was enacted, a group

of plaintiffs led by Press Robinson 1 (the “Robinson

1. Press Robinson, Edgar Cage, Dorothy Nairne, Edwin Rene

Soule, Alice Washington, Clee Earnest Lowe, Davante Lewis, Martha
Davis, Ambrose Sims, National Association for the Advancement of
Colored People (“NAACP”) Louisiana State Conference, and Power
Coalition for Equity and Justice.
 8a

Appendix A

Plaintiffs”), and a second group of plaintiffs led by

Edward Galmon, Sr. 2 (the “Galmon Plaintiffs”), filed
suit against the Louisiana Secretary of State in the
United States District Court for the Middle District of
Louisiana. Robinson Injunction Ruling at 768. The Middle
District consolidated the Robinson and Galmon suits and
allowed intervention by the President of the Louisiana
State Senate, the Speaker of the Louisiana House of
Representatives, and the Louisiana Attorney General.
Id. at 768-69.

The Robinson and Galmon Plaintiffs alleged that the

congressional map created by HB1 diluted the votes of
Black Louisianians in violation of Section 2 of the Voting
Rights Act of 1965, 52 U.S.C. § 10301. Robinson Injunction
Ruling at 768. This dilution was purportedly accomplished
through “ ‘packing’ large numbers of Black voters into
a single majority-Black congressional district...and
‘cracking’ the remaining Black voters among the other five
districts...to ensure they [would be] unable to participate
equally in the electoral process.” Id. at 768. Both sets
of plaintiffs sought a preliminary injunction that would
prohibit the Secretary of State from using the HB1 map
in the 2022 congressional elections, give the Legislature
a deadline to enact a map that complied with the Voting
Rights Act, and order the use of a map proposed by the
plaintiffs in the event the Legislature failed to enact a
compliant map. Id. at 769.

2. Edward Galmon, Sr., Ciara Hart, Norris Henderson, and

Tramelle Howard.
 9a

Appendix A

The Middle District held an evidentiary hearing in

the Robinson matter, beginning May 9, 2022. Robinson
Injunction Ruling at 769. On June 6, 2022, the court issued
a preliminary injunction finding that the Robinson and
Galmon Plaintiffs were likely to prevail on their Section
2 vote dilution claims. Id. at 851-52. The Middle District
further determined that a new compliant voting map could
be drawn without disrupting the 2022 election. Id. at 856.

Accordingly, the Middle District entered an order

enjoining the Secretary of State from conducting elections
using the HB1 map, ordered the Legislature to enact a
new voting map that included a second majority-Black
voting district by June 20, 2022, and stayed the state’s
nominating petition deadline until July 8, 2022. Robinson
Injunction Ruling at 858. In the event the Legislature
failed to enact a new map before the deadline, the Middle
District set an evidentiary hearing for June 29, 2022,
regarding which map should be used in its place. Robinson
Docket, [Doc. 206].

On June 9, 2022, the Middle District denied a motion

to stay the injunction pending appeal. Robinson v. Ardoin,
No. CV 22-211-SDD-SDJ, 2022 U.S. Dist. LEXIS 103003,
2022 WL 2092551 (M.D. La. June 9, 2022). While the
United States Court of Appeals for the Fifth Circuit
initially stayed the injunction review on the same day,
Robinson v. Ardoin, No. 22-30333, 2022 U.S. App. LEXIS
16361, 2022 WL 2092862 (5th Cir. June 9, 2022), it vacated
the stay a few days later. Robinson v. Ardoin, 37 F.4th 208,
232 (5th Cir. 2022). On June 28, 2022, the Supreme Court
of the United States again stayed the Middle District’s
 10a

Appendix A

injunction. Ardoin v. Robinson, 142 S. Ct. 2892, 213

L.Ed.2d 1107 (2022). On June 26, 2023, after the Supreme
Court issued its decision in Allen v Milligan, 599 U.S. 1,
143 S. Ct. 1487, 216 L. Ed. 2d 60 (2023), the court vacated
the stay in Robinson as improvidently granted, allowing
review of the matter to continue before the Fifth Circuit.
Ardoin v. Robinson, 143 S. Ct. 2654, 216 L.Ed.2d 1233
(2023).

In response to the Supreme Court’s action in vacating

the stay, the Middle District reset the remedial evidentiary
hearing to begin October 3, 2023. Robinson Docket, [Doc.
250]. The Louisiana Attorney General sought mandamus
from the Fifth Circuit, which vacated the evidentiary
hearing. In re Landry, 83 F.4th 300, 308 (5th Cir. 2023).

On November 10, 2023, the Fifth Circuit issued its

decision on the Secretary of State’s appeal of the Middle
District’s preliminary injunction. Robinson v. Ardoin,
86 F.4th 574 (5th Cir. 2023) (“Robinson Appeal Ruling”).
Although noting that the Robinson Plaintiffs’ arguments
were “not without weaknesses,” the Circuit Court found
no clear error with the Middle District’s factual findings,
nor with its conclusion that the HB1 map likely violated
Section 2, and held that the preliminary injunction was
valid when it was issued. Robinson Appeal Ruling at 599.
However, because the 2022 election had already occurred
and because the Legislature had time to enact a new map
without disrupting the 2024 election, the Fifth Circuit
concluded that the district court’s preliminary injunction
was no longer necessary. Id. Accordingly, the Fifth
Circuit vacated the injunction to give the Legislature
 11a

Appendix A

the opportunity, if it desired, to enact a new redistricting

plan before January 15, 2024. Id. at 601. The Fifth
Circuit opinion did not provide any parameters or specific
direction as to how the Legislature was to accomplish
this task. Id. If no new re-districting plan was enacted
before January 15, 2024, the Fifth Circuit directed the
district court, “to conduct a trial and any other necessary
proceedings to decide the validity of the HB1 map, and,
if necessary, to adopt a different districting plan for the
2024 elections.” Id.

The Middle District thereafter set a remedial

evidentiary hearing for February 5, 2024. Prior to that
date, and as detailed below, the Legislature enacted SB8,
creating a new congressional districting map. Upon notice
of SB8’s enactment, the Middle District cancelled the
remedial hearing. Robinson Docket, [Doc. 343].

D. Legislative Response

Among the first actions of newly inaugurated Governor

Jeff Landry was to call the 2024 First Extraordinary
Session on Monday, January 8, 2024 (the “Special
Session”). JE8. This call directed the Legislature to,
among other things, “legislate relative to the redistricting
of the Congressional districts of Louisiana.” Id. On the first
day of the Special Session, Governor Landry addressed
the joint chambers. After detailing his extensive efforts
in Robinson to defend the congressional map enacted in
2022, he stated: “we have exhausted all legal remedies and
we have labored with this issue for far too long.” JE35 at
11. “[N]ow, once and for all,” he continued, “I think it’s
 12a

Appendix A

time that we put this to bed. Let us make the necessary

adjustments to heed the instructions of the court. Take
the pen out of the hand of a non-elected judge and place
it in your hands. In the hands of the people. It’s really
that simple. I would beg you, help me make this a reality
in this special session, for this special purpose, on this
special day.” Id.

The product of the Special Session was SB8, which

was passed on January 22, 2024. JE10. The Court has
reviewed the entire legislative record, including the
January 15 Joint Session, the January 15 House and
Governmental Affairs Committee hearing, the January
16 Senate and Governmental Affairs Committee hearing,
the January 17 Senate floor debate, the January 17 House
and Governmental Affairs Committee hearing, the
January 18 House floor hearing, the January 18 House and
Governmental Affairs Committee hearing, the January 19
House of Representatives floor debate, and the January
19 Senate floor debate. PE23-29. Numerous comments
during the Special Session highlight the intent of the
Legislature in passing SB8.

Senator Glen Womack, the Senate sponsor of SB8,

stated at the legislative session that redistricting must
occur because of the litigation occurring in the Middle
District of Louisiana. PE41, at 18. Specifically because of
that litigation, Senator Womack opined that “we had to
draw two majority minority districts.” PE41, at 20. Later
in the Special Session, Senator Womack, in addressing
the odd shape of SB8’s District 6 (shown below), admitted
that creating two majority-Black districts is “the reason
 13a

Appendix A

why District 2 is drawn around the Orleans Parish and

why District 6 includes the Black population of East Baton
Rouge Parish and travels up I-49 corridor to include Black
population in Shreveport.” PE41, at 26. Senator Womack
also professed: “we all know why we’re here. We were
ordered to draw a new black district, and that’s what I’ve
done.” JE31, 121:21-22

Li kew ise, i n the House of Represent at ives,

Representative Beau Beaullieu was asked during his
presentation of SB8 by Representative Beryl Amedee,
“is this bill intended to create another Black district?”
and Representative Beaullieu responded, “yes, ma’am,
and to comply with the judge’s order.” JE33, 9:3-8.
Representative Josh Carlson stated, even in his support
of SB8, that “the overarching argument that I’ve heard
from nearly everyone over the last four days has been race
first” and that “race seems to be, at least based on the
conversations, the driving force” behind the redistricting
plan. Id. at 97:18-19, 21-24.

But, Representative Carlson acknowledged that racial

integration made drawing a second majority-Black district
difficult:

And so the reason why this is so difficult is

because we are moving in the right direction.
We don’t have concentrated populations of - of
certain minorities or populations of white folks
in certain areas. It is spread out throughout
the state. Compared to Alabama, Alabama
has 17 counties that are minority-majority, and
 14a

Appendix A

they’re all contiguous. Louisiana has seven

parishes that are minority-majority and only
three are contiguous. That’s why this process
is so difficult, but here we are without any other
options to move forward.

Id. at 98:2-12.

Representative Rodney Lyons, Vice Chairman of

the House and Governmental Affairs Committee, stated
that the “mission that we have here is that we have to
create two majority-Black districts.” JE31, 75:24-76:1.
Senator Jay Morris also remarked that “[i]t looks to me
we primarily considered race.” JE34, 7:2-3. Senator Gary
Carter went on to express his support for SB8 and read a
statement from Congressman Troy Carter on the Senate
floor:

My dear friends and colleagues, as I said on the

steps of the capital, I will work with anyone who
wants to create two majority-minority districts.
I am not married to any one map. I have worked
tirelessly to help create two majority-minority
districts that perform. That’s how I know that
there may be better ways to create — to craft
both of these districts. There are multiple maps
that haven’t been reviewed at all. However, the
Womack map creates two majority-minority
districts, and therefore I am supportive of it.
And I urge my former colleagues and friends
to vote for it while trying to make both districts
stronger with appropriate amendment. We do
 15a

Appendix A

not want to jeopardize this rare opportunity

to give African American voters the equal
representation they rightly deserve.

JE30, 16:10-25.

Louisiana Attorney General Murrill also gave the

legislators advice during the Special Session. She told
them that the 2022 enacted map, HB1, was a defensible
and lawful map. JE28, 36:24-37:1. She stated, “I am
defending that map, and so you won’t hear me say that I
believe that that map violated the redistricting criteria,”
Id. at 42:23, and “I am defending it now.” Id. at 46:3-4.
She further declared “I am defending what I believe to
have been a defensible map.” Id. at 53:2. She also informed
legislators that the Robinson litigation had not led to a fair
or reliable result. Id. at 61:20-62:12, 62:24-63:3, 63:6-17.

SB8 was the only congressional map to advance out of

committee and through the legislative process. The map
was passed on Friday, January 19, 2024, and signed by
the Governor as Act 2 on January 22, 2024. JE10. SB8’s
second majority-minority district, District 6, stretches
some 250 miles from Shreveport in the northwest corner
of the state to Baton Rouge in southeast Louisiana,
slicing through metropolitan areas to scoop up pockets
of predominantly Black populations from Shreveport,
Alexandria, Lafayette, and Baton Rouge. The figure
below, which shows the map enacted by SB8, demonstrates
the highly irregular shape of Congressional District 6.
 16a

Appendix A

PE14.

When converted to a black and white map and placed

next to the Hays II map, the similarities of the two maps
become obvious.

Black and White Version of PE14 (left) and PE22 (right).

 17a

Appendix A

E. The Parties and Their Claims

The Plaintiffs, Philip Callais, Lloyd Price, Bruce

Odell, Elizabeth Ersoff, Albert Caissie, Daniel Weir,
Joyce LaCour, Candy Carroll Peavy, Tanya Whitney,
Mike Johnson, Grover Joseph Rees, and Rolfe McCollister,
challenge SB8. [Doc. 156]. Plaintiff Philip Callais is a
registered voter of District 6. Id. Plaintiff Albert Caissie,
Jr. is a registered voter of District 5. Id. Plaintiff Elizabeth
Ersoff is a registered voter of District 6. Id. Plaintiff
Grover Joseph Rees is a registered voter of District 6.
Id. Plaintiff Lloyd Price is a registered voter of District
6. Id. Plaintiff Rolfe McCollister is a registered voter
of District 5. Id. Plaintiff Candy Carroll Peavy is a
registered voter of District 4. Id. Plaintiff Mike Johnson
is a registered voter of District 4. Id. Plaintiff Bruce
Odell is a registered voter of District 3. Id. Plaintiff Joyce
LaCour is a registered voter of District 2. Id. Plaintiff
Tanya Whitney is a registered voter of in District 1. Id.
Plaintiff Danny Weir, Jr., is a registered voter of District
1. Id. Each of the Plaintiffs is described as a “non-Black
voter.” [Doc. 1].

The State Defendants are Secretary of State Nancy

Landry, in her official capacity, and the State of Louisiana,
represented by Attorney General Elizabeth Murrill. [Doc.
156]. The State intervened as a defendant on February
26, 2024. [Doc. 79].

Press Robinson, Edgar Cage, Dorothy Nairne, Edwin

Rene Soule, Alice Washington, Clee Earnest Lowe,
Davante Lewis, Martha Davis, Ambrose Sims, National
Association for the Advancement of Colored People
 18a

Appendix A

Louisiana State Conference, and Power Coalition for

Equity and Justice (collectively “Robinson Intervenors”)
are African American Louisiana voters and civil rights
organizations. [Doc. 156]. They were Plaintiffs in
Robinson, et al v. Landry, No. 3:22-cv-0211-SDDSDJ
(M.D. La.) and intervened here as defendants to defend
SB8. [Doc. 156]. They intervened permissively in the
remedial phase of this litigation on February 26, 2024,
and permissively in the liability phase on March 15, 2024.
[Docs. 79, 114]. Davante Lewis lives in District 6. Tr.,
Vol. III, 567:23-568:1. The voting districts for the other
individual Robinson Intervenors was not established in
the record.

Plaintiffs assert that: (1) the State has violated the

Equal Protection Clause of the Fourteenth Amendment
by enacting a racially gerrymandered district; and (2)
the State has violated the Fourteenth and Fifteenth
Amendments by intentionally discriminating against
voters and abridg ing their votes based on racial
classifications across the State of Louisiana. [Doc.
1, ¶ 5]. The Plaintiffs request that the Court issue a
declaratory judgment that SB8 is unconstitutional under
the Fourteenth and Fifteenth Amendments, issue an
injunction barring the State of Louisiana from using
SB8’s map of congressional districts for any election, and
institute a congressional districting map that remedies
these violations. Id., p. 31.

F. The Three-Judge Panel and Trial

On February 2, 2024, Priscilla Richman, the Chief

Judge of the Fifth Circuit Court of Appeals, issued an
 19a

Appendix A

Order Constituting Three-Judge Court. [Doc. 5]. Chief

Judge Richman designated Judge Carl E. Stewart, of
the Fifth Circuit Court of Appeals, Judge Robert R.
Summerhays, of the Western District of Louisiana,
and Judge David C. Joseph, of the Western District of
Louisiana, to serve on the three-judge district court
convened under 28 U.S.C. § 2284. Id. On February 17,
2024, Plaintiffs filed a Motion for Preliminary Injunction.
[Doc. 17]. On February 21, 2024, the Court issued a
Scheduling Order setting the hearing on the Preliminary
Injunction—consolidated with trial on the merits—to
commence on April 8, 2024, in Shreveport, Louisiana.
[Doc. 63]. The hearing commenced on April 8, 2024,
and ended on April 10, 2024. Collectively, the parties
introduced thirteen (13) witnesses and one hundred ten
(110) exhibits.

II.

Evidentiary Record

A. Fact Witnesses

1. Legislators

a. Alan Seabaugh

Alan Thomas Seabaugh is a Louisiana State Senator

for District 31, located in northwest Louisiana. Senator
Seabaugh took office in January 2024. He had previously
served as a Louisiana State Representative for thirteen
years. Tr. Vol. I, 42:16-17. Senator Seabaugh testified that
the only reason the Legislature was attempting to pass
 20a

Appendix A

a redistricting plan during the Special Session was the

litigation pending in the Middle District of Louisiana,
and specifically “Judge Dick saying that she — if we
didn’t draw the second minority district, she was going
to. I think that’s the only reason we were there.” Id. at
47:22-48:1. When asked if having a second majority-Black
district was the one thing that could not be compromised
in the plans being considered, Senator Seabaugh testified
“that’s why we were there.” Id. at 50:2. Senator Seabaugh
ultimately voted no to SB8 and indicated that he believed
the 2022 map (HB1) was a good map. Id. at 52:19-22. On
cross examination, Senator Seabaugh acknowledged that,
in determining how to draw the new districts, protecting
the districts of Mike Johnson and Stephen Scalise - two
of Louisiana’s representatives in the United States House
of Representatives, serving as Speaker and Majority
Leader, respectively - were important considerations. Id.
at 60:8-20.

b. Thomas Pressly

Thomas Pressly is a Louisiana State Senator for

District 38, which is located in the northwest corner of
Louisiana. Senator Pressly took office in January 2024. He
had previously served as a Louisiana State Representative
for four years. Tr., Vol. I, 66:1-6. Senator Pressly testified
that during the Special Session, “the racial component
in making sure that we had two performing African
American districts was the fundamental tenet that we
were looking at. Everything else was secondary to that
discussion.” Id. at 69:16-19. Senator Pressly acknowledged
that political considerations were also factored into the
ultimate redistricting plan, stating:
 21a

Appendix A

[t]he conversation was that we would — that

we were being told we had to draw a second
majority-minority seat. And the question then
was, okay, who — how do we do this in a way to
ensure that we’re not getting rid of the Speaker
of the House, the Majority Leader, and Senator
Womack spoke on the floor about wanting to
protect Julia Letlow as well.

Id. at 72:1-7. Senator Pressly testified that he did not

believe that his district in the northwest corner of
Louisiana shares a community of interest with either
Lafayette or Baton Rouge, both located in the southern
half of Louisiana, based on either natural disaster
concerns or educational needs. Id. at 73:1-23. Senator
Pressly spoke against SB8 during the Special Session and
testified that he believed the 2022 map should be retained.
Id. at 77:6-8.

c. Mandie Landry

Mandie Landry is a Louisiana State Representative

for House District 91, located in New Orleans. She took
office in January 2020. Tr., Vol. II, 366:2-3. Representative
Landry testified that the Special Session was convened
because the Republicans were afraid that if they did not
draw a map which satisfied the court, then the court would
draw a map that would not be as politically advantageous
for them. Id. at 368:8-10. Representative Landry indicated
that she understood Governor Jeff Landry to favor the
map created by SB8, in part because he believed the
map would resolve the Robinson litigation in the Middle
District, and in part because the new map would cause
 22a

Appendix A

Congressman Garrett Graves - a Republican incumbent

with whom Landry was believed to have a contentious
relationship - to lose his seat. Id. at 369:10-15.

d. Royce Duplessis

Royce Duplessis is a Louisiana State Senator

representing Senate District 5, which is located in the
New Orleans area. He took office in December 2022 and
previously served as a Louisiana State Representative for
over four years. Tr. Vol. III, 512:21-24. Senator Duplessis
testified that his understanding of the reason for the
Special Session was “to put an end to the litigation and
adopt a map that was compliant with the Judge’s order.” Id.
at 519:22-23. Though he was not a member of the Senate’s
redistricting committee, Senator Duplessis co-sponsored
a separate bill during the Special Session, namely SB4,
which also created two majority-Black districts. Id. at
521:1-2. SB4 was ultimately voted down in committee in
favor of SB8. Id. at 523:14-23. Senator Duplessis testified
that he believed SB8 passed because Governor Landry
supported SB8 for political reasons. Id. at 525:1-7. Senator
Duplessis voted in favor of SB8 because he believed it
complied with the Voting Rights Act, it met the criteria
ordered by the court, and was a fair map which would
satisfy the people of Louisiana. Id. at 527:23 -528:9.
Senator Duplessis testified that he was very proud of the
passage of SB8 because:

It was always very clear that a map with two

majority black districts was the right thing.
It wasn’t the only thing, but it was a major
 23a

Appendix A

component to why we were sent there to redraw

a map.

Id. at 530:15-19.

2. Community Members

a. Cedric Bradford Glover

Cedric Bradford Glover is a resident of Shreveport,

Louisiana, who previously served a total of five terms in
the Louisiana House of Representatives, and two terms
as mayor of Shreveport. Tr., Vol. II, 454:12-20. Mayor
Glover testified that he believes SB8’s District 6 reflects
common communities of interest, specifically the I-49
corridor, the communities along the Red River, higher
education campuses, healthcare systems, and areas of
economic development. Id. at 457:17-458:21.

b. Pastor Steven Harris, Sr.

Steven Harris, Sr. resides in Natchitoches, Louisiana,

where he serves as a full-time pastor and a member of the
Natchitoches Parish School Board. Tr., Vol. II, 463:5-6.
Pastor Harris’ ministerial duties require him to travel
to Alexandria, Shreveport, Lafayette, Baton Rouge,
and places in between. Id. at 463:18-20. Pastor Harris,
who lives and works in District 6, testified that there
are communities of interest among the areas in which he
regularly travels, specifically churches and educational
institutions. Id. at 466:24 - 467:16. Pastor Harris testified
that he believes Baton Rouge has more in common with
 24a

Appendix A

Alexandria and Shreveport than with New Orleans, due

to the different culture, foods, and music. Id. at 467:20-
468:14.

c. Ashley Kennedy Shelton

Ashley Kennedy Shelton resides in Baton Rouge and

founded and runs the Power Coalition for Equity and
Justice (the “Coalition”), one of the Robinson Intervenors.
Tr., Vol. II, p. 474:8-11. The Coalition is a 501(c)(3) civic
engagement organization which seeks to create “pathways
to power for historically disenfranchised communities.”
Id. at 474:24-475:1. She testified that the Coalition has
been involved with the redistricting process since the 2020
census by educating the community about the redistricting
process, as well as encouraging community involvement in
that process. Id. at 475:21. Ms. Shelton initially supported
SB4, another map offered in the Special Session which
also contained two majority-minority districts, but that
map did not move out of committee. Id. at 482:1-2. Ms.
Shelton, along with the Coalition, went on to support SB8
because it:

centered communities that have never been

centered in any of the current congressional
districts that they are within. And so when
you look at the district that’s created in SB8,
the communities across that district are living
in poverty, have poor health outcomes, lack
of access to economic opportunity, similar
hospitals, similar size airports. Like there is
this - there is this opportunity to really center
 25a

Appendix A

these communities in a way that they have not

had the attention in the current districts that
they exist within.

Id. at 483:6-15.

d. Davante Lewis

Davante Lewis, one of the Robinson Intervenors,

is a resident of Baton Rouge, Louisiana, and currently
serves as a commissioner for the Louisiana Public
Service Commission and chief strategy officer of Invest
in Louisiana. Tr., Vol. III, 542:23-25. Commissioner Lewis
testified that he has been involved in politics since he
was a teenager and has taken part in the redistricting
process on numerous occasions as a lobbyist. Id. at 548:3-
15. During the Special Session, Commissioner Lewis
initially supported SB4, another bill which also included
two majority-minority districts but failed to pass out of
committee. Id. at 553:15-22. Commissioner Lewis, who is
now a resident in District 6, testified that he was happy with
the passage of SB8 because “it accomplishes the goals that
I wanted to see which was complying with the rule of law
as well as creating a second [B]lack-majority district.” Id.
at 576:16-18. Commissioner Lewis believes that he shares
common interests with voters living in other areas within
District 6, namely economies, civic organizations, religious
organizations, educational systems, and agriculture. Id.
at 578:14-25. On cross-examination, Commissioner Lewis
admitted that District 6 intersects four of the five public
service commission districts in the state.
 26a

Appendix A

B. Expert Witnesses

a. Dr. Stephen Voss

The Court accepted Plaintiffs’ witness Dr. Stephen

Voss as an expert in the fields of: (i) racial gerrymandering;
(ii) compactness; and (iii) simulations.3 Tr., Vol. I, 92:13-25;
93:1-19; 111:6-7; 123:7-9. Dr. Voss was born in Louisiana,
lived most of his life in Jefferson Parish, and earned his
Ph.D. in political science at Harvard University, where
his field of focus was quantitative analysis of political
methodology. Id. at 85:12-13; 87:8-21.

Dr. Voss began his testimony by comparing the

districts created by SB8 to past enacted congressional
maps in Louisiana and other proposals that the Legislature
considered during the Special Session. Tr., Vol. I, 97:19-
98:2. Dr. Voss described District 6 as a district:

that stretches, or I guess the term is “slashes,”

across the state of Louisiana to target four
metropolitan areas, which is the majority of
the larger cities in the state. It then scoops out
from each of those predominant - the majority

3. Plaintiffs retained Dr. Stephen Voss to answer three

questions: (1) whether SB8 represents an impermissible racial
gerrymander, where race was the predominant factor in the drawing
of district lines; (2) whether SB8 sacrificed traditional redistricting
criteria in order to create two majority-minority districts; and (3)
whether the Black population in Louisiana is sufficiently large and
compact to support two majority-minority districts that conform to
traditional redistricting criteria. Tr., Vol. I, 91:3-25 (Voss).
 27a

Appendix A

black and predominantly black precincts from

each of those cities.

Id. at 93:25; 94:1-5. Dr. Voss explained that the borders of

District 6, which include portions of the distant parishes
of Lafayette and East Baton Rouge, track along Black
communities, including precincts with larger Black
population percentages while avoiding communities with
large numbers of white voters. Id. at 94:18-95:10. Dr. Voss
reiterated that the boundaries of District 6 were drawn
specifically to contain heavily Black-populated portions
of cities while leaving more white-populated areas in the
neighboring districts. Id. at 96:7-16; PE3; PE4. Dr. Voss
also testified that, compared to other maps proposed
during the Special Session and other past congressional
maps, SB8 split a total of 18 of Louisiana’s 64 parishes,
Tr., Vol. I, 97:19-99:11, and, at 62.9 percent of Louisiana’s
population, had the highest percentage of individuals
affected by parish splits. Id. 98:3-99:11; PE6.

Dr. Voss also studied the compactness of SB8 under

three generally accepted metrics: (i) Reock Score; (ii)
Polsby-Popper score; and (iii) Know It When You See It
(“KIWYSI”).4 Tr., Vol. I, 100:22-103:5. Dr. Voss found that

4. According to Dr. Voss, a district’s “Reock score” quantifies its

compactness by measuring how close the district is to being a circle.
Tr., Vol. 1, 100:23-6. A district’s “Polsby-Popper” score is intended
to take into account a district’s jagged edges and “tendrils.” Id.,
101:25-102:19. Finally, the “Know It When You See It” method uses a
metric derived by panels of judges and lawyers and a representative
sample of people looking at the shape of a district and giving their
quantification of compactness. Id., 102:20-104:2. The KIWYSI
 28a

Appendix A

across all three measures of compactness, SB8 performed

worse than either HB1 (the map that was enacted in 2022)
or the map that HB1 replaced from the previous decade.
Id. at 104:25-105:4; PE7. Thus, SB8 did not produce
compact maps when judged in comparison to other real-life
congressional maps of Louisiana. Tr., Vol. I, 107:16-21. Dr.
Voss also found that SB8’s majority-Black districts were
especially non-compact compared to other plans that also
included two majority-minority districts. Id. at 106:17-24.
According to Dr. Voss, SB8’s District 6 scored worse on
the Polsby-Popper test than the second majority-Black
districts in other proposed plans that created a second
majority-Black district. Id. at 106:17-24.

Dr. Voss further testified that SB8’s and District 6’s

uniquely poor compactness was not necessary if the goal
was to accomplish purely political goals. “If you’re not
trying to draw a second black majority district, it is very
easy to protect Representative Julia Letlow. Even if you
are, it’s not super difficult to protect Representative Julia
Letlow,” he testified. Tr., Vol. I, 108:17-21. Additionally,
according to Dr. Voss, the Legislature did not need to
enact a map with two majority-minority districts in order
to protect Representative Letlow’s congressional seat:
“[Representative Letlow] is in what historically is called
the Macon Ridge...[a]nd given where she is located, it is not
hard to get her into a heavily Republican, heavily white
district.” Id. at 111:15-23. Dr. Voss testified similarly with
respect to Representative Garrett Graves, concluding that

method originated from individuals’ subjective judgments, but the

metric itself is standardized and uses specific software to compute
a numerical figure representing compactness. Id., 103:15-104:2.
 29a

Appendix A

the Legislature did not need to enact a second majority-

minority district in order to put Representative Garrett
Graves in a majority-Black district. Id. at 112:2-16. Thus,
Dr. Voss concluded that neither the goal of protecting
Representative Letlow’s district, nor the goal of targeting
Representative Graves, would have been difficult to
accomplish while still retaining compact districts. Id. at
110:15-22.

Dr. Voss testified extensively about simulations,

explaining that he used the Redist simulation package
(“Redist”) to analyze the statistical probability of the
Legislature creating SB8 without race predominating
its action. 5 Id. at 113:14-115:6. Using Redist, Dr. Voss
compared “lab-grown” simulations of possible maps to
SB8 in order to analyze the decisions the Legislature
made during the redistricting process, Id. at 114:2-23, so
that he could judge whether the parameters or constraints
under which he created the simulations could explain
the deviations evident in SB8. Id. at 118:15-23. Dr. Voss
testified that he performed tens of thousands of both
“race-conscious” and “race-neutral” simulations, and that
none of these simulations randomly produced a map with
two Democratic districts. Id. at 138:9-14. On that basis,
Dr. Voss opined that the non-compact features of SB8 are
predominantly explained by racial considerations. Id. at
139:17-23.

5. According to Dr. Voss, Redist uses Sequential Monte Carlo

(“SMC”) simulation in order to generate a representative sample
of districts that could have been drawn under certain parameters.
Id., 113:8-114:10.
 30a

Appendix A

Concluding that District 6 performs worse on the

Polsby-Popper score than the second majority-Black
district in the other plans; worse on the Reock score
than the other plans that created a second majority-
Black district, with a very low score; and worse on the
KIWYSI method than the other plans and the majority-
Black districts they proposed, Id. at 106:18-24, Dr. Voss
ultimately opined that SB8 represents an impermissible
racial gerrymander. Id. at 92:23-24.

b. Dr. Cory McCartan

Dr. Cory McCartan was proffered by the Robinson

Intervenors in rebuttal to Dr. Voss and was qualified by the
Court as an expert in the fields of redistricting and the use
of simulations. Tr., Vol. I, 187:5-14. Though Dr. McCartan
criticized Dr. Voss for a number of his methodologies,
the Court notes that Dr. McCartan conducted no tests or
simulations of his own, Id. at 215:18-21, and his testimony
was often undercut by his own previous analysis.

First, Dr. McCartan criticized Dr. Voss’s simulations

on grounds that Dr. Voss did not incorporate the relevant
redistricting criteria used by actual mapmakers. Id. at
198:10-24. Dr. McCartan also questioned the efficacy of
simulations in detecting racial gerrymandering. Id. at
196:13-25; 197:1-12. Yet Dr. McCartan had previously
led the Algorithm Assisted Redistricting Methodology
(“ALARM”) Project team, which traversed the country
simulating multiple districts in multiple states, including
Louisiana, and authored a paper which declared that
simulations are well-suited to assess what types of
 31a

Appendix A

racial outcomes could have happened under alternative

plans in a given state. Id. at 227:9-21. Dr. McCartan also
testified that he himself used the ALARM project to
detect partisan, or political gerrymandering - ultimately
finding that Louisiana had only one plausible district
favoring the Democratic party. Id. at 216:23-25. And on
cross-examination, Dr. Voss confirmed that Professor
Kosuke Imai, who helped develop the Redist software,
applied these same simulation techniques in the racial
gerrymandering context. Id. at 150:18-151:1. On this
point, therefore, the Court finds Dr. McCartan’s testimony
unpersuasive.

Dr. McCartan also criticized Dr. Voss for not

imposing a constraint in his simulations for natural or
geographic boundaries. Id. at 200:1-6. Yet Dr. McCartan
acknowledged that in his work with ALARM to generate
Louisiana congressional map simulations, his team did not
impose any kind of requirement for natural or geographic
boundaries. Id. at 230:24-231:1. Dr. McCartan also
criticized Dr. Voss for not adding incumbent protection
as a constraint in the simulations, but when pressed,
could not testify that this extra constraint would trigger
the creation of a second majority-minority district. Id. at
238:11-16 (McCartan).

Similarly, Dr. McCartan could not give a convincing

reason why it was appropriate for his own team to
use a compactness constraint of 1.0, while testifying
that this same criterion made Dr. Voss’s simulations
unrepresentative. Id. at 231:5-16. Dr. Voss, on the other
hand, explained why adjustments to the compactness
 32a

Appendix A

criterion made the simulation results less reliable. Id. at

162:22-24, 163:21-165:19. Finally, Dr. McCartan confirmed
that both his simulations on Louisiana congressional maps
and Dr. Voss’s simulations generated plans that were more
compact than the enacted version of SB8, which was far
worse than the Polsby-Popper compactness scores of both
Dr. McCartan’s and Dr. Voss’s simulations. Id. at 233:20-
24 (McCartan). Dr. McCartan also acknowledged that
his own partisan gerrymandering simulations yielded no
more than 10 out of 5,000 maps with a second Democratic
seat. Id. at 235:4-236:12.

In evaluating the testimony of Dr. Voss and Dr.

McCartan, the Court finds Dr. Voss’s testimony to be
credible circumstantial evidence that race was the
predominant factor in crafting SB8. Though Dr. McCartan
provided some insight into the uses of simulations in
detecting the presence of racial gerrymandering, his
testimony indicated that his own team had performed
simulations under conditions not unlike Dr. Voss’s, and
with conclusions that supported Dr. Voss. Dr. McCartan’s
other criticisms of Dr. Voss were either not well-founded
or rebutted.

c. Michael Hefner

Plaintiffs proffered Michael Hefner as an expert

demographer, and he was qualified by the Court as
such. Tr., Vol. II, 270:23-15; 271:1-5. Mr. Hefner is from
Louisiana and has lived his whole life in various parts
of the state. Id. at 258:3-6; [Doc. 182-8]. Having worked
in the field of demography for 34 years, most of Mr.
 33a

Appendix A

Hefner’s work consists of creating redistricting plans

for governmental entities, including municipalities and
school boards, throughout the State of Louisiana after
decennial censuses; conducting precinct management
work for Louisiana parish governments; working on school
desegregation cases in Louisiana; and conducting site-
location analyses in Louisiana. Tr., Vol. II, 257:9-22; Doc.
182-8. Mr. Hefner testified that he came to the following
conclusions during his analysis for this case: (1) given the
geographic distribution and concentration of the Black
population in Louisiana, it is impossible to create a second
majority-minority district and still adhere to traditional
redistricting criteria, Tr., Vol. II, 271:11-22, 282:21-283:6;
and (2) race predominated in the drafting of SB8. Id. at
271:23; 272:1-14.

Mr. Hefner explained that the Black population in

Louisiana is highly dispersed across the State and is
concentrated in specific urban areas, including New
Orleans, Baton Rouge, Alexandria, Lafayette, and
Shreveport.6 Tr., Vol. II, 281:7-15; 283:19-285:1; 339:20-
340:4 (Hefner); see also Mr. Hefner’s Heat Map, [Docs.
182-9, 182-10]. Using a heat map he created based on data
representing the Black voting age population (“BVAP”)
across the State from the 2020 census, Mr. Hefner testified
that outside the New Orleans and East Baton Rouge
areas, the Black population is highly dispersed across
the state. Tr., Vol. II, 281:4-15. Mr. Hefner opined that,

6. According to Mr. Hefner, the highest concentration of African

American voters is in New Orleans; the second highest concentration
is in East Baton Rouge; and the third highest concentration is in
Shreveport. Tr., Vol. II, 281:4-15.
 34a

Appendix A

given this dispersion, it is impossible to draw a second

majority-minority congressional district without violating
traditional redistricting criteria. Id. at 282:22-283:6.

Focusing on SB8, Mr. Hefner testified that SB8 is

drawn to trace the areas of the state with a high BVAP
to create a second majority-minority district, Tr., Vol.
II, 283:15-285:1, echoing the testimony of Dr. Voss.
Specifically, Mr. Hefner stated that District 6’s borders
include the concentrated Black populations in East Baton
Rouge, Alexandria, Opelousas, Natchitoches, Mansfield,
Stonewall, and up to Shreveport, Id. at 283:15-285:1, but
carved concentrated precincts out of the remainder of the
parishes to avoid picking up too much population of non-
Black voters. Id. at 283:15-285:1. Taking Lafayette Parish
as an example, Mr. Hefner testified that District 6 includes
the northeast part of the parish, where voting precincts
contain a majority of Black voters, while excluding the
remainder of the parish, in which the precincts are not
inhabited by predominantly Black voters. Id. at 283:22-
284:4. Likewise, in Rapides Parish, District 6 splits
Rapides Parish to include only the precincts in which there
is a high concentration of Black voters, for the purpose of
including the overall BVAP in the district. Id. at 284:4-8.

Mr. Hefner also testified that SB8’s compactness

score is extremely small. In fact, it is so low on the Polsby-
Popper and Reock metrics that it is almost not compact at
all.7 Id. at 302:21-303:2; PE21. Explaining that District 6
7. The Polsby-Popper scale goes from 0 (no compactness) to 1
(total compactness). Mr. Hefner testified that District 6 had a Polsby-
Popper score of 0.05. Id., 303:13-20.
 35a

Appendix A

is extremely long and extremely strung out, Tr., Vol. II,

303:18-20, Mr. Hefner testified that SB8 scored lower than
HB1 on both the Polsby-Popper and Reock tests. Id. at
302:16-303:25; PE21. Mr. Hefner testified that District 6 is
not reasonably compact, Tr., Vol. II, 304:11-14; its shape is
awkward and bizarre, Id. at 304:23-305:6; it is extremely
narrow at points, Id. at 305:18-306:2; its contiguity is
tenuous, Id. at 293:23-24; and it splits many parishes and
municipalities, including four of the largest parishes in
the State (Caddo, Rapides, Lafayette, and East Baton
Rouge), each of which are communities of interest. Id. at
295:7-8. Finally, Mr. Hefner testified that the Plaintiffs’
redistricting plan, introduced as Illustrative Plan 1, was
a reasonable plan that can be drawn in a race-neutral
manner; adheres to the use of traditional redistricting
principles; preserves more communities of interest;
provides more compact election districts; preserves the
core election districts; and balances the population within
each district. Id. at 272:17-25; 273:1-2.

a. Anthony Fairfax

Mr. Anthony Fairfax testified on behalf of the

Robinson Intervenors to rebut the testimony of Mr.
Hefner, and was qualified by the Court as an expert
in redistricting and demography. Tr., Vol. II, 379:6-15.
Contradicting Mr. Hefner, Mr. Fairfax testified that
traditional redistricting principles could be used to create
maps with a second majority-Black district. Id. at 381-
383:24. But on rebuttal, Mr. Fairfax admitted that the
map he used did not account for where people lived within
parishes, and his map therefore failed to take account of
 36a

Appendix A

where Black voters are located in each parish. Id. at 407:4-

125; 408:1-12. Therefore, on the issue of parish splitting,
Mr. Fairfax’s testimony was unpersuasive. Rather, as
Mr. Hefner testified, Fairfax’s analysis fails to show
the Court whether District 6 specifically targeted those
pockets of high populations of Black voters. Id. at 292:13-
293:3. Tellingly, in discussing preservation of communities
of interests, parishes, and municipalities, Mr. Fairfax
agreed with Mr. Hefner that SB8 split more parishes and
municipalities than HB1, Id. at 385:14-18; 389:5-9, and
that SB8 split more parishes and municipalities than the
previously enacted plan. Id. at 385:11-15; 389:2-9.

III.

A pplicable Law

To obtain permanent injunctive relief, the plaintiffs

must establish by a preponderance of the evidence: “(1)
actual success on the merits; (2) that it is likely to suffer
irreparable harm in the absence of injunctive relief; (3)
that the balance of equities tip in that party’s favor; and (4)
that an injunction is in the public interest.”8 Crown Castle
Fiber, L.L.C. v. City of Pasadena, Texas, 76 F.4th 425, 441
(5th Cir. 2023), cert. denied, 144 S. Ct. 820, 218 L. Ed. 2d
30 (2024); see also Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20-32, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008).

The Equal Protection Clause of the Fourteenth

Amendment provides that: “[N]o state shall ... deny to

8. The Court consolidated the preliminary injunction hearing

with the full trial on the merits. See [Doc. 63].
 37a

Appendix A

any person within its jurisdiction the equal protection

of the laws.” U.S. Const. A mend. XIV, § 1. The intent of
the provision is “to prevent the States from purposefully
discriminating between individuals on the basis of race.”
Shaw v. Reno, 509 U.S. 630, 642, 113 S. Ct. 2816, 2824, 125
L.Ed.2d 511 (1993) (“Shaw I”). As applied to redistricting,
the Equal Protection Clause bars “a State, without
sufficient justification, from ‘separat[ing] its citizens into
different voting districts on the basis of race.” Bethune-
Hill v. Virginia State Bd. of Elections, 580 U.S. 178, 187,
137 S. Ct. 788, 797, 197 L.Ed.2d 85 (2017) (citing Miller v.
Johnson, 515 U.S. 900, 911, 115 S. Ct. 2475, 132 L.Ed.2d
762 (1995)). Thus, the Equal Protection Clause prohibits
the creation and implementation of districting plans
that include racial gerrymanders, with few exceptions.
“A racial gerrymander [is] the deliberate and arbitrary
distortion of district boundaries ... for [racial] purposes.”
Shaw I, 509 U.S. at 640 (citing Davis v. Bandemer, 478
U.S. 109, 164, 106 S. Ct. 2797, 2826, 92 L.Ed.2d 85 (1986)
(Powell, J. concurring in part and dissenting in part),
abrogated on other grounds by Rucho v. Common Cause,
588 U.S. 684, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019)).
Courts analyze racial gerrymandering challenges under
a two-part burden-shifting framework.

First, a plaintiff bears the burden to prove that “race

was the predominant factor motivating the legislature’s
decision to place a significant number of voters within
or without a particular district.” Miller, 515 U.S. at 916.
This requires a plaintiff to show that “the legislature
‘subordinated’ other factors — compactness, respect for
political subdivisions, partisan advantage, what have you
— to ‘racial considerations.’ “ Cooper v. Harris, 581 U.S.
 38a

Appendix A

285, 291, 137 S. Ct. 1455, 1464, 197 L.Ed.2d 837 (2017)
(citing Miller, 515 U.S. at 916). The plaintiff may make
the requisite showing “either through circumstantial
evidence of a district’s shape and demographics or more
direct evidence going to legislative purpose, that race
was the predominant factor motivating the legislature’s
decision....” Alabama Legislative Black Caucus v.
Alabama, 575 U.S. 254, 267, 135 S. Ct. 1257, 1267, 191
L.Ed.2d 314 (2015) (citing Miller, 515 U.S. at 916).

If Plaintiff meets the burden of showing race played

the predominant factor in the design of a district, the
district must then survive strict scrutiny. Cooper, 581
U.S. at 292. At this point, the burden of proof “shifts to
the State to prove that its race-based sorting of voters
serves a ‘compelling interest’ and is ‘narrowly tailored’
to that end.” Cooper, 581 U.S. at 285 (citing Bethune-
Hill, 580 U.S. at 193). “Racial gerrymandering, even
for remedial purposes” is still subject to strict scrutiny.
Shaw I, 509 U.S. at 657. Where the state seeks to draw a
congressional district by race for remedial purposes under
Section 2, the state must have a “strong basis in evidence”
for “finding that the threshold conditions for section 2
liability are present” under Gingles. And, to survive strict
scrutiny, “the district drawn in order to satisfy § 2 must
not subordinate traditional districting principles to race
substantially more than is ‘reasonably necessary’ to avoid
§ 2 liability.” Bush v. Vera, 517 U.S. 952, 979, 116 S. Ct.
1941, 1961, 135 L.Ed.2d 248 (1996).
 39a

Appendix A

IV.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Racial Predominance

The Court first addresses whether Plaintiffs have

met their burden of showing that race predominated in
drawing District 6. Racial awareness in redistricting
does not necessarily mean that race predominated in the
Legislature’s decision to create a second majority-minority
district. Shaw I, 509 U.S. at 646. When redistricting, a
legislature may be aware of race when it draws district
lines, just as it is aware of other demographic information
such as age, economic status, religion, and political
affiliation. Shaw I, 509 U.S. at 646. Race consciousness,
on its own, does not make a district an unconstitutional
racial gerrymander or an act of impermissible race
discrimination. Id. But while districts may be drawn for
remedial purposes, Section 2 of the Voting Rights “never
require[s] adoption of districts that violate traditional
redistricting principles.” Allen v. Milligan, 599 U.S. 1, 29
- 30, 143 S. Ct. 1487, 1492, 216 L.Ed.2d 60 (2023) (internal
citations omitted). Indeed, to survive strict scrutiny, “the
district drawn in order to satisfy § 2 must not subordinate
traditional districting principles to race substantially more
than is ‘reasonably necessary’ to avoid § 2 liability.” Vera,
517 U.S. at 979. As discussed above, racial predominance
may be shown through either circumstantial evidence,
direct evidence, or both. Ala. Legis. Black Caucus, 135
S. Ct. at 1267.
 40a

Appendix A

Here, the Robinson Intervenors and the State argue

that political considerations predominated in drawing
the boundaries of District 6. They argue that the State
had to create a second majority-minority district based
on the district court’s ruling in the Robinson litigation
and that District 6 was drawn with the primary purpose
of protecting key Republican incumbents, such as
Speaker Mike Johnson, Majority Leader Steve Scalise,
and Representative Julia Letlow. It is clear from the
record and undisputed that political considerations —
the protection of incumbents — played a role in how
District 6 was drawn. Plaintiffs, however, contend that
considerations of race played a qualitatively greater role
in how the State drew the contours of District 6 than these
political considerations.

1. Circumstantial Evidence

In the redistricting realm, appearances matter. A

district’s shape can provide circumstantial evidence of a
racial gerrymander. Shaw I, 509 U.S. at 647. In the past,
the Supreme Court has relied on irregular district shapes
and demographic data to find racial gerrymandering.9 See
9. Significantly, “[s]hape is relevant not because bizarreness
is a necessary element of the constitutional wrong or a threshold
requirement of proof, but because it may be persuasive circumstantial
evidence that race for its own sake, and not other districting
principles, was the legislature’s dominant and controlling rationale
in drawing its district lines.” Miller, 515 U.S. at 912-913; See Shaw v.
Hunt, 861 F. Supp. 408, 431 (E.D.N.C. 1994); Hays I; but see DeWitt
v. Wilson, 856 F. Supp. 1409, 1413 (E.D. Cal.1994). Thus, a district’s
bizarre shape is not the only type of circumstantial evidence on which
parties may rely. Id.
 41a

Appendix A

Shaw v. Hunt, 517 U.S. 899, 910-16, 116 S. Ct. 1894, 135
L. Ed. 2d 207 (1996) (“Shaw II”); Miller, 515 U.S. 900;
Vera, 517 U.S. 952.

Here, as described by Dr. Voss, District 6 “ ‘slashes’

across the state of Louisiana” and includes portions of
four disparate metropolitan areas. But — critical to
our analysis — District 6 only encompasses the parts of
those cities that are inhabited by majority-Black voting
populations, while excluding neighboring non-minority
voting populations. Tr., Vol. I, 93:25; 94:1-5; 94:18-95:10;
96:7-16; PE3; PE4. His description encapsulates what the
following maps show on their face:

Baton Rouge Close Up of 2024 Enacted Map (JE17).

 42a

Appendix A

Lafayette Close Up of 2024 Enacted Map (JE17).

Alexandria Close Up of 2024 Enacted Map (JE17).

 43a

Appendix A

Shreveport Close Up of 2024 Enacted Map (JE17).

Like Shaw II and Vera, this case presents evidence of

“mixed motives” in creating District 6 - motives based on
race and political considerations. Unlike a single motive
case, any circumstantial evidence tending to show neglect
of traditional districting principles, such as compactness
and respect for parish lines, caused District 6’s bizarre
shape could seemingly arise from a “political motivation
as well as a racial one.” Cooper v. Harris, 581 U.S. at 308
(citing Hunt v. Cromartie, 526 U.S. 541, 547 n.3, 119 S.
Ct. 1545, 1549, 143 L.Ed.2d 731 (1999)). In mixed motive
cases such as this one, the Supreme Court has noted that
“political and racial reasons are capable of yielding similar
oddities in a district’s boundaries.” Id. Accordingly, this
Court faces “a formidable task: It must make ‘a sensitive
inquiry’ into all ‘circumstantial and direct evidence of
 44a

Appendix A

intent’ to assess whether the plaintiffs have managed to

disentangle race from politics and prove that the former
drove a district’s lines.” Id.

Turning to the record, Mr. Hefner’s “heat map” is

particularly helpful as circumstantial evidence of the
motives driving the decisions as to where to draw the
boundaries of District 6. The “heat map” shows that
outside of the New Orleans and East Baton Rouge areas,
the state’s Black population is highly dispersed across the
state. Tr., Vol. II 281:4-15. Mr. Hefner opined that District
6 was designed as such to collect these highly dispersed
BVAP areas in order to create a second majority-minority
district. Id., 283:15-285:1.

[GRAPHIC 9]

PE 16.

When Mr. Hefner’s heat map is superimposed on SB8,

the “story of racial gerrymandering” becomes evident.
 45a

Appendix A

See Miller, 515 U.S. at 917 (“... when [the district’s] shape
is considered in conjunction with its racial and population
densities, the story of racial gerrymandering ... becomes
much clearer”). That exhibit shows that District 6 sweeps
across the state to include the heavily concentrated
Black population neighborhoods in East Baton Rouge,
Alexandria, Opelousas, Natchitoches, and Mansfield. Most
telling, District 6 juts up at its northern end to carve out the
Black neighborhoods of Shreveport and separates those
neighborhoods from the majority white neighborhoods of
Shreveport and Bossier City (“Shreveport-Bossier”). Tr.,
Vol. II, 283:15-285:1.

PE 18.

District 6 also dips down from its northwest trajectory

and splits the majority of Black neighborhoods of Lafayette
from the rest of the city and parish. Specifically, District
 46a

Appendix A

6 includes Lafayette’s northeast neighborhoods, which

contain a predominantly Black population, while leaving
the rest of the city and parish in neighboring District 3. Id.
at 283:22-284:4. In sum, the “heat maps” and demographic
data in evidence tell the true story — that race was the
predominate factor driving decisions made by the State
in drawing the contours of District 6. This evidence shows
that the unusual shape of the district reflects an effort to
incorporate as much of the dispersed Black population as
was necessary to create a majority-Black district.

2. Direct Evidence

The Court next looks to the direct evidence of the

Legislature’s motive in creating District 6 - in other words,
what was actually said by the individuals who had a hand
in promulgating, drafting, and voting on SB8. The direct
evidence buttresses the Court’s conclusion that race was
the predominant factor the legislators relied upon in
drawing District 6.

The record includes audio and video recordings, as

well as transcripts, of statements made by key political
figures such as the Governor of Louisiana, the Louisiana
Attorney General, and Louisiana legislators, all of whom
expressed that the primary purpose guiding SB8 was
to create a second majority-Black district due to the
Robinson litigation. As discussed supra, the Middle
District, after the preliminary injunction hearing in
Robinson, found a likelihood of success on the merits of
the Robinson Plaintiffs’ claim that a second majority-
minority district was required by Section 2 of the Voting
 47a

Appendix A

Rights. Although the preliminary injunction was vacated

by the Fifth Circuit to allow the Legislature to enact a
new map, legislators chose to draw a map with a second
majority-Black district in order to avoid a trial on the
merits in the Robinson litigation. See, e.g., Tr. Vol. III,
588:11-17 (“Judge Dick has put us in a position and the
Fifth Circuit, the panel that reviewed that decision, and
the whole court, when I asked them to go en banc, by
declining to go on en banc, have put us in a position pus
[sic] of where we are today where we need to draw a map.”);
JE28, 46:5-101 (same); see also Tr. Vol. III, 589:1-3 (“The
courts, never the less, have told us to draw a new map. And
they have indicated that we have a deadline to do that or
Judge Dick will draw the map for us.”); JE28 at 36:14-17
(same); JE36 at 33 (Senator Price: “Regardless of what
you heard, we are on a court order and we need to move
forward. We would not be here if we were not under a
court order to get this done.”); JE36 at 1 (Senator Fields:
“[B]oth the district and the appeals court have said we need
to do something before the next congressional elections.”);
JE31, 26:12-24 (Chairman Beaullieu: “Senator Womack,
why are we here today? What — what brought us all to
this special session as it — as it relates to, you know, what
we’re discussing here today?”; Senator Womack: “The
middle courts of the district courts brought us here from
the Middle District, and said, ‘Draw a map, or I’ll draw a
map.’”; Chairman Beaullieu: “Okay.”; Senator Womack:
“So that’s what we’ve done.”; Chairman Beaullieu: “And
— and were you — does — does this map achieve that
middle court’s orders?”; Senator Womack: “It does.”);
PE41, 75:24-76:2 (Representative Lyons, Chairman of
the House and Governmental Affairs Committee, stating
 48a

Appendix A

“[T]he mission we have here is that we have to create

two majority-Black districts.”); PE41, 121:19-22 (Senator
Womack stating that “... we all know why we’re here. We
were ordered to — to draw a new Black district, and that’s
what I’ve done.”); PE41, 9:3-8 (Representative Amedee:
“Is this bill intended to create another black district?”
Representative Beaullieu: “Yes, ma’am, and to comply with
the judge’s order.”); JE31, 97:17-19, 21-24 (Representative
Carlson: “the overarching argument that I’ve heard from
nearly everyone over the last four days has been race first
... race seems to be, at least based on the conversations,
the driving force....”). SB 8’s sponsor, Senator Womack,
also explicitly admitted that creating two majority-Black
districts was “the reason why District 2 is drawn around
the Orleans Parish and why District 6 includes the Black
population of East Baton Rouge Parish and travels up the
I-49 corridor to include Black population in Shreveport.”
PE41 at 26.

The Court also acknowledges that the record includes

evidence that raceneutral considerations factored into
the Legislature’s decisions, such as the protection of
incumbent representatives. See JE29 at 2-3 (Senator
Womack discussing that SB8 protects Congresswoman
Julia Letlow, U.S. Speaker of the House Mike Johnson,
and U.S. House Majority Leader Steve Scalise); Tr. Vol.
I, 71:11-18, 79:1-4 (Senator Pressley testifying that “[w]e
certainly wanted to protect Speaker Johnson ... We wanted
to make sure that we protected Steve Scalise. Julia Letlow
is on Appropriations. That was also very important that we
try to keep her seat as well.”); Id. at 60:8-61:15 (Senator
Seabaugh testifying that the fact that the Speaker and
 49a

Appendix A

Majority Leader are from Louisiana is “kind of a big deal”

and that protecting Speaker Johnson, Majority Leader
Scalise, and Representative Letlow was “an important
consideration when drawing a congressional map.”).10

However, considering the circumstantial and the

direct evidence of motive in the creation of District 6, the
Court finds that “racially motivated gerrymandering had
a qualitatively greater influence on the drawing of the
district lines than politically motivated gerrymandering.”
Vera, 517 U.S. at 953. As in Shaw II and Vera, the
State first made the decision to create a majority-Black
district and, only then, did political considerations factor
into the State’s creation of District 6. The predominate
role of race in the State’s decisions is reflected in the
statements of legislative decision-makers, the division of
cities and parishes along racial lines, the unusual shape

10. At bottom, it is not credible that Louisiana’s majority-

Republican Legislature would choose to draw a map that eliminated
a Republican-performing district for predominantly political
purposes. The Defendants highlight the purported animosity
between Governor Jeff Landry and Representative Garrett Graves
to support their contention that political considerations served as
the predominant motivating factor behind SB8. However, given
the slim majority Republicans hold in the United States House of
Representatives, even if such personal or intra-party animosity did
or does exist, it is difficult to fathom that Louisiana Republicans
would intentionally concede a seat to a Democratic candidate on those
bases. Rather, the Court finds that District 6 was drawn primarily to
create a second majority-Black district that they predicted would be
ordered in the Robinson litigation after a trial on the merits. Thus,
it is clear that race was the driving force and predominant factor
behind the creation of District 6.
 50a

Appendix A

of the district, and the evidence that the contours of the

district were drawn to absorb sufficient numbers of Black-
majority neighborhoods to achieve the goal of a functioning
majority-Black district. If the State’s primary goal was
to protect congressional incumbents, the evidence in the
record does not show that District 6 in its current form
was the only way to achieve that objective. As explained
by the Supreme Court:

One, often highly persuasive way to disprove a

States contention that politics drove a district’s
lines is to show that the legislature had the
capacity to accomplish all its partisan goals
without moving so many members of a minority
group into the district. If you were really
sorting by political behavior instead of skin
color (so the argument goes) you would have
done — or, at least, could just as well have done
— this. Such would-have, could-have, and (to
round out the set) should-have arguments are
a familiar means of undermining a claim that
an action was based on a permissible, rather
than a prohibited, ground.

Cooper, 581 U.S. at 317. In the present case, the record

reflects that the State could have achieved its political
goals in ways other than by carving up and sorting by race
the citizens of Baton Rouge, Lafayette, Alexandria, and
Shreveport. Put another way, the Legislature’s decision
to increase the BVAP of District 6 to over 50 percent
was not required to protect incumbents and supports the
Plaintiffs’ contention that race was the predominate factor
in drawing the district’s boundaries. In sum, Plaintiffs
 51a

Appendix A

have met their initial burden, and the burden now shifts to
the State to prove that District 6 survives strict scrutiny.

B. Strict Scrutiny

W hen a Pla inti ff succeeds in prov ing racia l

predominance, the burden shifts to the State to
“demonstrate that its districting legislation [was] narrowly
tailored to achieve a compelling interest.” Bethune-Hill,
580 U.S. at 193 (citing Miller, 515 U.S. at 920).

1. Compelling State Interest

The State argues that compliance with Section 2 of

the Voting Rights Act is a compelling state interest. The
Supreme Court has repeatedly assumed without deciding
that compliance with the Voting Rights Act is a compelling
interest. See Shaw II, 517 U.S. at 915; Cooper, 581 U.S.
at 292; Bethune-Hill, 580 U.S. at 193. To show that the
districting legislation satisfies the “narrow tailoring”
requirement “the state must establish that it had ‘good
reasons’ to think that it would transgress the act if it did
not draw race-based district lines.” This “strong basis (or
‘good reasons’) standard” provides “breathing room” to
the State “to adopt reasonable compliance measures that
may prove, in perfect hindsight not to have been needed.”
Cooper, 581 U.S. at 293 (quoting Bethune-Hill, 580 U.S.
at 193) (emphasis added). Moreover, the Supreme Court
has often remarked that “redistricting is primarily the
duty and responsibility of the State,” not of the courts.
Abbott v. Perez, 585 U.S. 579, 603, 138 S. Ct. 2305, 2324,
201 L.Ed.2d 714 (2018) (citing Miller, 515 U.S. at 915).
 52a

Appendix A

Turning to the present case, the State argues that

it had a “strong basis” in evidence to believe that the
district court for the Middle District was likely, after a
trial on the merits in Robinson, to rule that Louisiana’s
congressional map violated Section 2 of the Voting Rights
Act and order the creation of a second majority-Black
district. See Robinson Appeal Ruling at 583 (vacating
the district court’s preliminary injunction and granting
the Legislature the opportunity to draw a new map
instead of advancing to a trial on the merits of HB1); See
also Robinson Docket, [Doc. 315] (“If the Defendant/
Intervenors fail to produce a new enacted map on or before
[January 30, 2024], this matter will proceed to a trial on
the merits on [February 5, 2024], which shall continue
daily until complete”); see, e.g., JE36 at 4 (Senator Price:
“We all know that we’ve been ordered by the court that we
draw congressional districts with two minority districts.
This map will comply with the order of both the Fifth
Circuit Court of Appeals and the district court. They have
said that the Legislature must pass a map that has two
majority black districts.”); JE33, 5:1-7 (Representative
Beaullieu: “As Senator Stine said earlier in this week,
‘It’s with a heavy heart that I present to you this other
map,’ but we have to. It’s that clear. A federal judge has
ordered us to draw an additional minority seat in the
State of Louisiana.”); JE34, 11:3-7 (Senator Carter: “[W]e
came together in an effort to comply with a federal judge’s
order that Louisiana provide equal representation to the
African Americans in the State of Louisiana, and we have
an opportunity to do that.”); JE36 at 18 (Representative
Marcelle: “Let’s not let Judge Dick have to do what our
job is, which is to create a second minority-majority
 53a

Appendix A

district.”); JE30, 20:22-21:4 (Senator Duplessis: “It’s about

a federal law called the Voting Rights Act that has not
been interpreted just by one judge in the Middle District
of Louisiana who was appointed by former president
Barack Obama, but also a U.S. Fifth Circuit Court of
Appeals that’s made up of judges that were appointed by
predominantly Republican presidents, and a United States
Supreme Court that has already made rulings.”); Tr. Vol. I,
47:22-48:1 (Senator Seabaugh: “Well, the - really, the only
reason we were there was because of the other litigation;
and Judge Dick saying that she — if we didn’t draw the
second minority district, she was going to. I think that’s
the only reason we were there.”); Tr. Vol. I, 69:24-70:4
(Senator Pressly: “We were told that we had to have two
performing African American districts. And that we were
— that that was the main tenet that we needed to look at
and ensure that we were able to draw the court — draw
the maps; otherwise, the Court was going to draw the
maps for us”).

The Court assumes, without deciding, that compliance

with Section 2 was a compelling interest for the State to
attempt to create a second majority-Black district in the
present case. However, even assuming that the Voting
Rights Act is a compelling state interest in this case,
that compelling interest does not support the creation
of a district that does not comply with the factors set
forth in Gingles or traditional districting principles. See
e.g., Shaw II, 517 U.S. at 915 (“We assume, arguendo, for
the purpose of resolving this suit, that compliance with
Section 2 could be a compelling interest” but hold that
the remedy is not narrowly tailored to the asserted end);
 54a

Appendix A

Vera, 517 U.S. at 977 (plurality opinion) (“[W]e assume

without deciding that compliance with [the Voting Rights
Act], as interpreted by our precedents, can be a compelling
state interest” but hold that the districts at issue are
not “narrowly tailored” to achieve that interest (citation
omitted)); Ala. Legis. Black Caucus, 575 U.S. at 279
(“[W]e do not here decide whether ... continued compliance
with § 5 [of the Voting Rights Act] remains a compelling
interest” because “we conclude that the District Court and
the legislature asked the wrong question with respect to
narrow tailoring.”).

Indeed, the Supreme Court has made clear that, in

the context of a constitutional challenge to a districting
scheme, “unless each of the three Gingles prerequisites
is established, “ ‘there neither has been a wrong nor
can be a remedy’” and the districting scheme does not
pass muster under strict scrutiny. Cooper v. Harris,
581 U.S. at 306 (quoting Growe v. Emison, 507 U.S. 25,
41, 113 S. Ct. 1075, 1084, 122 L.Ed.2d 388 (1993)). With
respect to traditional districting requirements, the
Supreme Court has consistently warned that, Ҥ 2 never
require[s] adoption of districts that violate traditional
redistricting principles. Its exacting requirements,
instead, limit judicial intervention to ‘those instances of
intensive racial politics’ where the ‘excessive role [of race]
in the electoral process ... den[ies] minority voters equal
opportunity to participate.’” Allen v. Milligan, 599 U.S. at
29-30 (internal citations omitted).11 Accordingly, whether

11. The concern that Section 2 may impermissibly elevate race

in the allocation of political power within the states is, of course, not
new. See, e.g., Shaw I, 509 U.S. at 657 (“Racial gerrymandering,
 55a

Appendix A

District 6, as drawn, is “narrowly tailored” requires the

Court to address the Gingles factors as well as traditional
districting criteria.

a. Consideration of the Gingles Factors

The Supreme Court in Gingles set out how courts

must evaluate claims alleging a Section 2 violation of the
Voting Rights Act. Gingles involved a challenge to North
Carolina’s districting scheme, which purportedly diluted
the vote of its Black citizens. Gingles, 478 U.S. at 34-36.

Gingles emphasized precisely what Section 2 guards

against. “The essence of a § 2 claim,” the Court explained,
“is that a certain electoral law, practice, or structure
interacts with social and historical conditions to cause
an inequality in the opportunities enjoyed by black and
white voters.” Id. at 47. This inequality occurs where
an “electoral structure operates to minimize or cancel
out” minority voters’ “ability to elect their preferred
candidates.” Id. at 48. This risk is greatest “where
minority and majority voters consistently prefer different
candidates” and where minority voters are submerged
in a majority voting population that “regularly defeat[s]”
their choices. Ibid.

even for remedial purposes, may balkanize us into competing racial

factions; it threatens to carry us further from the goal of a political
system in which race no longer matters.”); Allen v. Milligan,
599 U.S. at 41-42. To ensure that Gingles does not improperly
morph into a proportionality mandate, courts must rigorously
apply the “geographically compact” and “reasonably configured”
requirements. Id. at 44 (Kavanaugh concurrence, n. 2).
 56a

Appendix A

But Section 2 of the Voting Rights Act explicitly states

that, “nothing in this section establishes a right to have
members of a protected class elected in numbers equal
to their proportion in the population.” 52 U.S.C. § 10301.
And the Supreme Court has repeatedly admonished
that Gingles does not mandate a proportional number
of majority-minority districts. Indeed, “[i]f Gingles
demanded a proportional number of majority-minority
districts, States would be forced to group together
geographically dispersed minority voters into unusually
shaped districts, w ithout concern for traditional
districting criteria such as county, city, and town lines.
But Gingles and this Court’s later decisions have flatly
rejected that approach.” Allen v. Milligan, 599 U.S. at
43-44 (Kavanaugh concurring) (citing Abbott, 585 U.S. at
615; Vera, 517 U.S. at 979; Gingles, 478 U.S. at 50; Miller,
515 U.S. at 917-920; and Shaw I, 509 U.S. at 644-649).

Instead, Gingles requires the creation of a majority-

minority district only when, among other things: (i) a
State’s redistricting map cracks or packs a large and
“geographically compact” minority population and (ii)
a plaintiff’s proposed alternative map and proposed
majority-minority district are “reasonably configured” -
namely, by respecting compactness principles and other
traditional districting criteria such as county, city, and
town lines. Allen v. Milligan, 599 U.S. at 43 (Kavanaugh
concurring) (citing Cooper, 581 U.S. at 301-302; Voinovich
v. Quilter, 507 U.S. 146, 153-154, 113 S. Ct. 1149, 122
L.Ed.2d 500 (1993)).

In order to succeed in proving a Section 2 violation

under Gingles, Plaintiffs must satisfy three specific
 57a

Appendix A

“preconditions.” Gingles, 478 U.S. at 50. First, the “minority

group must be sufficiently large and [geographically]
compact to constitute a majority in a reasonably
configured district.” Wisconsin Legislature v. Wisconsin
Elections Comm’n, 595 U.S. 398, 402, 142 S. Ct. 1245,
1248, 212 L.Ed.2d 251 (2022) (per curiam) (citing Gingles,
478 U.S. at 46-51). Case law explains that a district will
be reasonably configured if it comports with traditional
districting criteria, such as being contiguous and
reasonably compact. See Ala. Legis. Black Caucus, 575
U.S. at 272. “Second, the minority group must be able to
show that it is politically cohesive.” Gingles, 478 U.S. at 51.
Third, “the minority must be able to demonstrate that the
white majority votes sufficiently as a bloc to enable it ... to
defeat the minority’s preferred candidate.” Ibid. Finally,
a plaintiff who demonstrates the three preconditions must
also show, under the “totality of circumstances,” that the
political process is not “equally open” to minority voters.
Id. at 38-38 and 45-46 (identifying several factors relevant
to the totality of circumstances inquiry, including “the
extent of any history of official discrimination in the state
... that touched the right of the members of the minority
group to register, to vote, or otherwise to participate in
the democratic process.”).

Each of the three Gingles preconditions serves a

different purpose. The first, which focused on geographical
compactness and numerosity, is “needed to establish that
the minority has the potential to elect a representative
of its own choice in some [reasonably configured] single-
member district.” Growe, 507 U.S. at 40. The second, which
concerns the political cohesiveness of the minority group,
shows that a representative of its choice would in fact be
 58a

Appendix A

elected. Ibid. The third precondition, which focuses on

racially polarized voting, “establish[es] that the challenged
districting thwarts a distinctive minority vote” at least
plausibly on account of race. Ibid. Finally, the totality of
circumstances inquiry recognizes that application of the
Gingles factors is “peculiarly dependent upon the facts
of each case.” 478 U.S. at 79. Before a court can find a
violation of Section 2, therefore, they must conduct “an
intensely local appraisal” of the electoral mechanism at
issue, as well as “searching practical evaluation of the
‘past and present reality.’ “ Ibid.

In the present case, the State simply has not met its
burden of showing that District 6 satisfies the first Gingles
factor — that the “minority group [is] sufficiently large
and [geographically] compact to constitute a majority
in a reasonably configured district.” The record reflects
that, outside of southeast Louisiana, the State’s Black
population is dispersed. That required the State to draw
District 6 as a “bizarre” 250-mile-long slash-shaped
district that functions as a majority-minority district
only because it severs and absorbs majority-minority
neighborhoods from cities and parishes all the way from
Baton Rouge to Shreveport. As discussed below, this fails
to comport with traditional districting principles.

b. Traditional Districting Principles

The first Gingles factor requires that a minority

population be “[geographically] compact to constitute a
majority in a reasonably configured district.” Allen v.
Milligan, 599 U.S. at 18 (quoting Wisconsin, 595 U.S. at
 59a

Appendix A

402). This requires consideration of traditional districting

principles.

Traditional districting principles consist of six criteria

that arose from case law. The first three are geographic in
nature and are as follows: (1) compactness, (2) contiguity,
and (3) preservation of parishes and respect for political
subdivisions. Shaw I, 509 U.S. at 647. The Supreme Court
has emphasized that “these criteria are important not
because they are constitutionally required - they are not,
cf. Gaffney v. Cummings, 412 U.S. 735, 752, n. 18, 93 S.
Ct. 2321, 2331, n. 18, 37 L.Ed.2d 298 (1973) - but because
they are objective factors that may serve to defeat a claim
that a district has been gerrymandered on racial lines.”
Id. The other three include preservation of communities
of interest, preservation of cores of prior districts, and
protection of incumbents. See Miller, 515 U.S. at 916;
Karcher v. Daggett, 462 U.S. 725, 740, 103 S. Ct. 2653, 77
L. Ed. 2d 133 (1983).

Joint Rule 21 — enacted by the Legislature in

2021 — contains criteria that must be satisfied by any
redistricting plan created by the Legislature, separate
and apart from compliance with the Voting Rights Act
and Equal Protection Clause. JE2. Joint Rule 21 states,
relevantly, that “each district within a redistricting plan
... shall contain whole election precincts as those are
represented as Voting Districts (VTDs)” and “[i]f a VTD
must be divided, it shall be divided into as few districts as
possible.” Id. at (G)(1)-(2). Joint Rule 21 further requires
the Legislature to “respect the established boundaries of
parishes, municipalities, and other political subdivisions
 60a

Appendix A

and natural geography of this state to the extent

practicable.” Id. at (H). However, this requirement does
not take precedence over the preservation of communities
of interest and “shall not be used to undermine the
maintenance of communities of interest within the same
district to the extent practicable.” Id.

The Supreme Court case of Miller v. Johnson

demonstrates how traditional districting criteria applies
to a racial gerrymandering claim. 515 U.S. at 910-911.
There, the Supreme Court upheld a district court’s finding
that one of Georgia’s ten congressional districts was the
product of an impermissible racial gerrymander. Id.
At the time, Georgia’s BVAP was 27 percent, but there
was only one majorityminority district. Id. at 906. To
comply with the Voting Rights Act, Georgia’s government
thought it necessary to create two more majority-minority
districts - thereby achieving proportionality. Id. at 920-
921. But like North Carolina in Shaw I, Georgia could not
create the districts without flouting traditional criteria.
Instead, the unconstitutional district “centered around
four discrete, widely spaced urban centers that ha[d]
absolutely nothing to do with each other, and stretch[ed]
the district hundreds of miles across rural counties and
narrow swamp corridors.” Miller, 515 U.S. at 908. The
Court called the district a geographic “monstrosity.”
Allen v. Milligan, 599 U.S. at 27-28 (citing Miller, 515
U.S. at 909).

c. Communities of Interest

Perhaps more than any other state of its size, the State
of Louisiana is fortunate to have a rich cultural heritage,
 61a

Appendix A

including diverse ethnicities, customs, economic drivers,

types of agriculture, and religious affiliations. While the
Court is not bound by the decisions in the Hays litigation
— made some thirty years ago and involving a different
though similar map, and different Census numbers —
much of the “local appraisal” analysis from Hays I remains
relevant to an analysis of SB8. There, the Hays court
concluded that the distinct and diverse economic interests
encapsulated in the challenged district, namely

cotton and soybean plantations, centers of

petrochemical production, urban manufacturing
complexes, timberlands, sawmills and paper
mills, river barge depots, and rice and sugarcane
fields are strung together to form the eclectic
and incoherent industrial base of District 4.
These diverse segments of the State economy
have little in common. Indeed, their interests
more often conflict than harmonize.

Hays I, 839 F. Supp. at 1201. Though this was written

30 years ago, the same is true today. And like the
predecessor districts drawn in Hays, it is readily apparent
to anyone familiar with Louisiana history and culture that
Congressional District 6 also

violates the traditional north-south ethno-

religious division of the State. A long its
circuitous route, this new district combines
English-Scotch-Irish, mainline Protestants,
traditional rural Black Protestants, South
Louisiana Black Catholics, Continental French-
Spanish-German Roman Catholics, sui generis
 62a

Appendix A

Creoles, and thoroughly mixed polyglots, each

from an historically discrete and distinctive
region of Louisiana, as never heretofore so
extensively agglomerated.

Id.

Indeed as succinctly stated by the Hays court, the

differences between North Louisiana, Baton Rouge, and
Acadiana in term of culture, economic drivers, types of
agriculture, and religious affiliations are pronounced.12

12. Among other strong cultural and ethnic groups divided

by SB8, the French Acadian (“Cajun”) and Creole communities in
Southwest Louisiana have a strong identity and a shared history of
adversity. The Acadians, for their part, were expelled from Nova
Scotia by the British and Anglo-Americans during the French
and Indian War, and some settled into the southwestern parishes
of Louisiana (“Acadiana”). See Carl A. Brasseaux, The Founding
of New Acadia: The Beginning of Acadian Life in Louisiana,
1765-1803 (Chapter 5) (Louisiana State University Press 1987).
This historical event is well-known in Louisiana and referred to
as Le Grand Dérangement. See William Faulker Rushton, The
Cajuns From Acadia to Louisiana (Farrar Straus Giroux 1979).
The Acadian refugees made their homes in the foreign swamps
and bayous of southern Louisiana and from there, built a rich and
persisting culture - marked by their distinct dialect of French, and
their cuisine, music, folklore, and Catholic faith. See Brasseaux, The
Founding of New Acadia.
In 1921, Louisiana’s Constitution eliminated any reference
to the French language and instead required only English to be
taught, used, and spoken in Louisiana schools, which detrimentally
affected the continuation of Cajun French. Roger K. Ward, The
French Language in Louisiana Law and Legal Education: A
Requiem, 57 La. L. Rev. 1299 (1997). https://digitalcommons.law.
lsu.edu/cgi/viewcontent.cgi?article=5694&context=lalrev.
 63a

Appendix A

This is so well known that any Louisiana politician seeking

statewide office must first develop a strategy to bridge the
regional cultural and religious differences in Louisiana.13

There is no doubt that District 6 divides some

established communities of interest from one another
while collecting parts of disparate communities of interest
into one voting district. Among other things, District 6

Remarkably, after years of cultural suppression, the late

1960s/early 1970s witnessed collective activism to revive Cajun
French and culture in the area. Id. at 1299; see also https://www.
nationalgeographic.com/culture/article/reviving-the-cajun-dialect.
Thankfully, Louisiana’s 1974 Constitution safeguarded efforts
by Cajun cultural groups to “ensure [their] preservation and
proliferation.” Id. at 1300. To this day, Acadiana celebrates its
Francophone ties with festivals such as Festival International de
Louisiane, which features Francophone musicians and artisans from
around the world, and Festival Acadiens and Créoles, the largest
Cajun and Creole festival in the world. Further, to preserve the
language, organizations such as CODOFIL support the preservation
of the French language in Louisiana, and on a smaller scale, many
community members form “French tables” where only French is
allowed to be spoken. The unique community of Acadiana, among
many others in Louisiana, with a deep connection and awareness
of its past, certainly constitutes a community of interest. Race
predominating, SB8 fails to take into account Louisiana’s diverse
cultural, religious, and social landscape in any meaningful way.

13. Attempting to bridge the north-south religious divide, one

of Louisiana’s most famous politicians, Huey Long, began his stump
speech by claiming, that, “when I was a boy, I would get up at six
o’clock in the morning on Sunday, and I would take my Catholic
grandparents to mass. I would bring them home, and at ten o’clock
I would hitch the old horse up again, and I would take my Baptist
parents to church.” A colleague later said, “I didn’t know you had
any Catholic grandparents.” To which he replied, “Don’t be a damned
fool. We didn’t even have a horse.”
 64a

Appendix A

in SB8 splits six of the ten parishes that it touches. As

the Court succinctly states in Hays, “there is no more
fundamental unit of societal organization in the history of
Louisiana than the parish.” Hays I, 839 F. Supp. at 1200.

District 6 also divides the four largest cities and

metropolitan areas in its path along clearly racial lines.
Among these are three of the four largest cities in
Louisiana — i.e., Baton Rouge, Lafayette, and Shreveport.
And the maps in the record are clear that the division
of these communities is based predominantly on the
location of majority-Black voting precincts. Indeed, SB8,
just like the congressional districts in Hays I, “violates
the boundaries of nearly all major municipalities in the
State.” Hays I, 839 F. Supp. at 1201. The law is crystal
clear on this point. As the Supreme Court held in Allen
v. Milligan, it is unlawful to “concentrate[] a dispersed
minority population in a single district by disregarding
traditional districting principles such as compactness,
contiguity, and respect for political subdivisions,”
reaffirming that “[a] reapportionment plan that includes
in one district individuals who belong to the same race, but
who are otherwise separated by geographical and political
boundaries,” raises serious constitutional concerns. 599
U.S. at 27 (citing Shaw I, 509 U.S. at 647). Based upon
the foregoing, the Court finds that SB8’s District 6 does
not satisfy the “geographically compact” and “reasonably
configured” Gingles requirement.
 65a

Appendix A

d. Respect for Political Subdivisions and

Natural Boundaries

Nor does SB8 take into account natural boundaries

such as the Atchafalaya Basin, the Mississippi River,
or the Red River. Just as in Miller, District 6 of SB8
“centers around four discrete, widely spaced urban
centers that have absolutely nothing to do with each
other, and stretches the district hundreds of miles across
rural counties and narrow swamp corridors.” 515 U.S. at
908; Allen v. Milligan, 599 U.S. at 27-28 (citing Miller
v. Johnson). Specifically, District 6’s population centers
around the widely-spaced urban centers of Shreveport,
Alexandria, Lafayette, and Baton Rouge - each of which
is an independent metropolitan area - and are connected
to one another only by rural parishes having relatively
low populations. Importantly, none of these four cities or
the parishes in which they are located are, by themselves,
large enough to require that they be divided to comply
with the “one person, one vote” requirement of the
Fourteenth Amendment. Reynolds v. Sims, 377 U.S. 533,
566, 84 S. Ct. 1362, 1384, 12 L.Ed.2d 506 (1964).

e. Compactness

The record also includes statistical evidence showing

that District 6 is not “compact” as required by traditional
districting principles. Specifically, Dr. Voss testified that,
based on three measures of compactness — (i) the Reock
Score; (ii) the Polsby-Popper score; and (iii) the Know It
When You See It (“KIWYSI”) score — the current form
 66a

Appendix A

of District 6 in SB8 performs worse than the districts

in either HB1 (the map that was enacted in 2022) or the
map that HB1 replaced from the previous decade. Tr.,
Vol. I, 100:22-103:5; 104:25-105:4; PE7. Thus, SB8 does
not produce compact maps when judged in comparison to
other real-life congressional maps of Louisiana. Tr., Vol. I,
107:16-21. Dr. Voss also opined that SB8’s majority-Black
districts were especially non-compact compared to other
plans that also included two majority-minority districts.
Id. at 106:17-24. According to Dr. Voss, SB8’s District 6
scored worse on the Polsby-Popper test than the second
majority-Black districts in other proposed plans that
created a second majority-Black district. Id. at 106:17-24.

In sum, District 6 does not satisfy the first Gingles

precondition nor does it comply with traditional districting
principles. Accordingly, SB8 and, more specifically,
District 6 cannot withstand strict scrutiny. That being
said, while the record is clear that Louisiana’s Black
population has become more dispersed and integrated in
the thirty years since the Hays litigation (and Louisiana
now has only six rather than the seven Congressional
districts it had at that time), this Court does not decide
on the record before us whether it is feasible to create
a second majority-Black district in Louisiana that
would comply with the Equal Protection Clause of the
Fourteenth Amendment. However, we do emphasize that
Section 2 of the Voting Rights Act never requires race
to predominate in drawing Congressional districts at
the sacrifice of traditional districting principles. Allen v.
Milligan, 599 U.S. at 29-30 (internal citations omitted).
 67a

Appendix A

V.

Remedial Phase

The Court will hold a status conference to discuss

the remedial stage of this trial on May 6, 2024, at 10:30
a.m. CST.

VI.

Conclusion

As our colleagues so elegantly stated in Hays II, the

long struggle for civil rights and equal protection under
the law that has taken place in Louisiana and throughout
our country, includes:

countless towns across the South, at schools

and lunch counters, at voter registrar’s offices.
They stood there, black and white, certain in
the knowledge that the Dream was coming;
determined that no threat, no spittle, no blow,
no gun, no noose, no law could separate us
because of the color of our skin. To say now:
“Separate!” “Divide!” “Segregate!” is to negate
their sacrifice, mock their dream, deny that
self-evident truth that all men are created
equal and that no government may deny them
the equal protection of its laws.

Hays II at 125. The Court agrees and finds that SB8

violates the Equal Protection Clause as an impermissible
racial gerrymander.
 68a

Appendix A

In light of the foregoing, the Court GRANTS

PL A INTIFFS ’ REQU EST FOR INJ U NCTI V E
RELIEF. The State of Louisiana is prohibited from using
SB8’s map of congressional districts for any election.

A status conference is hereby set on May 6, 2024, at

10:30 a.m. CST to discuss the remedial stage of this trial.
Representatives for each party must attend.

THUS, DONE AND SIGNED on this 30th day of

April 2024.

/s/ Robert R. Summerhays

ROBERT R. SUMMERHAYS
UNITED STATES DISTRICT JUDGE
WESTERN DISTRICT OF LOUISIANA

/s/ David C. Joseph

DAVID C. JOSEPH
UNITED STATES DISTRICT JUDGE
WESTERN DISTRICT OF LOUISIANA
 69a

Appendix A

Carl E. Stewart, Circuit Judge, dissenting:

Contrary to my panel colleagues, I am not persuaded

that Plaintiffs have met their burden of establishing that
S.B. 8 is an unconstitutional racial gerrymander. The
totality of the record demonstrates that the Louisiana
Legislature weighed various political concerns—including
protecting of particular incumbents—alongside race,
with no factor predominating over the other. The panel
majority’s determination that S.B. 8 is unconstitutional is
incredibly striking where, as here, Plaintiffs did not even
attempt to address or disentangle the various political
currents that motivated District 6’s lines in S.B. 8.1
While this inquiry should end at racial predominance,
I would further hold that S.B. 8 satisfies strict scrutiny
because the Supreme Court has never imposed the
aggressive incursion on state sovereignty that the panel
majority advocates for here. Indeed, the panel majority’s
requirements for permissible electoral map trades in the
substantial “breathing room” afforded state legislatures
in reapportionment for a tightly wrapped straight-jacket.
Therefore, I respectfully dissent.

1. Notably, none of the plaintiffs in this case demonstrated that

S.B. 8 had a discriminatory effect on them based on their race. None
of them testified or otherwise entered any evidence into the record
of their racial identity, which conflicts with the well-recognized
principle that actionable intentional discrimination must be against
an “identifiable group.” See Fusilier v. Landry, 963 F.3d 447, 463
(5th Cir. 2020). As an aside, nearly all of the plaintiffs in this case
lack standing to allege this racial gerrymandering claim because
they do not reside in District 6. See United States v. Hays, 515 U.S.
737, 744-45, 115 S. Ct. 2431, 132 L. Ed. 2d 635 (1996).
 70a

Appendix A

I. Factual Background

The Supreme Court has undoubtedly recognized that

in a “more usual case,” alleging racial gerrymandering,
a trial court “can make real headway by exploring the
challenged district’s conformity to traditional districting
principles, such as compactness and respect for county
lines.” Cooper v. Harris, 581 U.S. 285, 308, 137 S. Ct.
1455, 197 L. Ed. 2d 837 (2017). Notably, the panel majority
has proceeded full steam ahead in this direction without
proper regard for the atypical nature of this case and
trial record. Because of this, the panel majority has
mis-stepped with regard to their approach, resulting in
numerous errors and omissions in both their reasoning
and holding.

One such omission derives from the fact that none

of the prior redistricting cases arrive from the same
genesis as this one. This case involves important
distinctions, worth noting, that make it anything but a
“usual” racial gerrymandering case. See Cooper, 581
U.S. at 308. First, the State has made no concessions to
racial predominance. 2 Second, the State affirmatively
invokes a political motivation defense. 3 Third, the State

2. See Miller v. Johnson, 515 U.S. 900, 918, 115 S. Ct. 2475, 132
L. Ed. 2d 762 (1995) (“The court supported its conclusion not just
with the testimony . . . but also with the State’s own concessions.”).

3. E.g., Cooper, 581 U.S. at 308 (2017) (citing Hunt v. Cromartie,

526 U.S. 541, 547 n.3, 119 S. Ct. 1545, 143 L. Ed. 2d 731 (1999)
(“Cromartie I”)) (emphasizing the importance of inquiries into
asserted political or partisanship defenses since bizarrely shaped
districts “can arise from a ‘political motivation’ as well as a racial
one”).
 71a

Appendix A

constructively points—not to a Justice Department

demand letter as “a strong basis in evidence” but—to the
findings of an Article III judge.4 The panel majority has
failed to adequately grapple with each of these relevant
factors, I will address them herein.

I start with the 2020 Census because understanding

the setting is necessary in deciding this nuanced and
context-specific case. The Supreme Court has said as
much. It has held that the “historical background of the
decision is one evidentiary source, particularly if it reveals
a series of official actions taken for invidious purposes. The
specific sequence of events leading up to the challenged
decision also may shed some light on the decisionmaker’s
purposes.” Village of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 267, 97 S. Ct. 555, 50 L. Ed. 2d
450 (1977) (internal citations omitted). Effectually, it is a
mistake to view this case in a vacuum—as if the Louisiana
Legislature’s redistricting efforts and duties burgeon
in January 2024. Instead, viewing the case within the
lens of the appropriate backdrop—the United States
and Louisiana Constitutions, Robinson v. Ardoin, 5 and
Governor Landry’s call to open the 2024 Extraordinary

4. See Miller, 515 U.S. at 918 (“Hence the trial court had little
difficulty concluding that the Justice Department spent months
demanding purely race-based revisions to Georgia’s redistricting
plans, and that Georgia spent months attempting to comply.”)
(internal citation and quotation marks omitted).

5. Robinson v. Ardoin, 605 F. Supp. 3d 759, 767 (M.D. La. 2022)

(“Robinson I”), cert. granted before judgment, 142 S. Ct. 2892, 213
L. Ed. 2d 1107 (2022), and cert. dismissed as improvidently granted,
143 S. Ct. 2654, 216 L. Ed. 2d 1233 (2023), and vacated and remanded,
86 F.4th 574 (5th Cir. 2023).
 72a

Appendix A

Legislative Session—the Legislature had an obligation

to reapportion.

The U.S. Constitution sets out that “[t]he House of

Representatives shall be composed of Members chosen
every second Year by the People of the several States.”
It further vests state legislatures with the primary
responsibility to craft federal congressional districts,
namely through the Election Clause. U.S. Const. art. I, § 4,
cl. 1. Article III, § 6 of the Louisiana Constitution charges
the Louisiana Legislature with the duty to reapportion
the single-member districts for the U.S. House of
Representatives after each decennial census. La. Const.
art. III, § 6. In April 2021, the results of the 2020 Census
were delivered to Louisiana and the state’s congressional
apportionment remained six seats in the U.S. House of
Representatives. Robinson Interv. FOF, ECF 189-1, 11
(citing Robinson I, 605 F. Supp. 3d 767). The 2020 Census
data would drive the state of Louisiana’s redistricting
process. See La. Const. art. III, § 6; Robinson I, 605 F.
Supp. 3d at 767.

“Leading up to their redistricting session, legislators

held a series of ‘roadshow’ meetings across the state,
designed to share information about redistricting and
solicit public comment and testimony, which lawmakers
described as absolutely vital to this process.” Id. “The
drawing of new maps was guided in part by Joint Rule
No. 21, passed by the Louisiana Legislature in 2021 to
establish criteria that would ‘promote the development
of constitutionally and legally acceptable redistricting
plans.’” Robinson I, 605 F. Supp. 3d at 767. “The
 73a

Appendix A

Legislature convened on February 1, 2022 to begin the

redistricting process; on February 18, 2022, H.B. 1 and
S.B. 5, the bills setting forth new maps for the 2022
election cycle, passed the Legislature.” Id. at 767-68.

Following the promulgation of H.B. 1, a select group

of Black voters brought a claim under § 2 of the Voting
Rights Act of 1965 (“VRA”) to invalidate the congressional
maps. See id. at 760. The events of that litigation as it
proceeded through in the Middle District of Louisiana and
the Fifth Circuit propelled the newly elected Governor
Jeff Landry to call an Extraordinary Legislative Session
in January 2024. See JE 35 at 10-14. Ultimately, S.B. 8
“was chosen over other plans with two majority-Black
districts that were more compact and split fewer parishes
and municipalities because those plans failed to achieve
the overriding goal of protecting the seats of United States
House Speaker Mike Johnson, Majority Leader Steve
Scalise, and Representative Julia Letlow at the expense
of Representative Garret Graves.” Robinson Interv. Post-
trial Memo, ECF 189 at 1; Robinson Interv. FOF, ECF
189-1, at 33-35, ¶¶ 135-142.

While the panel majority repeatedly concedes that

the Hays litigation is three decades old and relies on
now-antiquated data, its opinion nevertheless presses
forward by drawing parallels and making conclusions
that are devoid of crucial context. The panel majority
avers that “much of the ‘local appraisal’ analysis from
Hays I remains relevant to an analysis of S.B.8,” claiming
that S.B. 8’s District 6 succumbs to the same violations
of the “traditional north-south ethno-religious division
 74a

Appendix A

of the State.” Majority Op. 53-54. Unlike Hays, where

the cartographer tasked with drawing the map conceded
that he “concentrated virtually exclusively on racial
demographics and considered essentially no other factor
except the ubiquitous constitutional ‘one person-one vote’
requirement,”6 the record before this court is filled with
evidence that political factors were paramount in the
drawing of S.B. 8. Additionally, the racial makeup of the
state has changed drastically over the past three decades.
As the Middle District of Louisiana adeptly concluded:

By every measure, the Black population in

Louisiana has increased significantly since
the 1990 census that informed the Hays
map. According to the Census Bureau, the
Black population of Louisiana in 1990 was
1,299,281.285. At the time, the Census Bureau
did not provide an option to identify as more
than one race. The 2020 Census results indicate
a current Black population in Louisiana of
1,464,023 using the single-race Black metric,
and 1,542,119 using the Any Part Black metric.
So, by the Court’s calculations, the Black
population in Louisiana has increased by at
least 164,742 and as many as 242,838 since
the Hays litigation. Hays, decided on census
data and demographics 30 years ago, is not a
magical incantation with the power to freeze
Louisiana’s congressional maps in perpetuity.
Hays is distinguishable and inapplicable.

6. Hays v. State, 936 F. Supp. 360, 368 (W.D. La. 1996).

 75a

Appendix A

Robinson I, 605 F. Supp. 3d at 834. Given this pivotal

context, I deem it a grievous error for the panel majority
to place the Hays map and S.B. 8 map side-by-side and
imply that the similarities in district shape alone are
dispositive. The panel majority is correct, however, that
“[this] Court is not bound by the decisions in the Hays
litigation.” Majority Op. 53.

II. Racial Predominance

Because of the interminable interplay between

satisfying the Fourteenth Amendment and complying with
§ 2 of the VRA, it is axiomatic that electoral districting
involves some racial awareness. Redistricting violates the
Equal Protection Clause of the Fourteenth Amendment
when race is the “predominant” consideration in deciding
“to place a significant number of voters within or without a
particular district.” Miller, 515 U.S. at 913, 916. However,
the Supreme Court has highlighted that:

[Electoral] districting differs from other kinds

of state decision-making in that the legislature
always is aware of race when it draws district
lines, just as it is aware of age, economic status,
religious and political persuasion, and a variety
of other demographic factors. That sort of
race consciousness does not lead inevitably to
impermissible race discrimination.

Shaw v. Reno, 509 U.S. 630, 646, 113 S. Ct. 2816, 125 L.
Ed. 2d 511 (1993) (“Shaw I”); see also Miller, 515 U.S. at
915-16 (“Redistricting legislatures will . . . almost always
 76a

Appendix A

be aware of racial demographics; but it does not follow

that race predominates in the redistricting process.”).
The Court again reemphasized in Easley v. Cromartie
that “race must not simply have been a motivation for
the drawing of a majority-minority district but the
predominant factor motivating the legislature’s districting
decision.” 532 U.S. 234, 241, 121 S. Ct. 1452, 149 L. Ed.
2d 430 (2001) (“Cromartie II”) (internal citations and
quotation marks omitted). Consequently, in my view, the
panel majority has not properly assessed “predominance”
under the relevant caselaw.

Specifically, the Supreme Court has directed “courts,

in assessing the sufficiency of a challenge to a districting
plan, [to] be sensitive to the complex interplay of forces
that enter a legislature’s redistricting calculus.” Miller,
515 U.S. at 915-16. This sensitive inquiry requires a careful
balancing of the legislative record and evidence adduced
at trial to unpack the motivations behind the lines on the
map. The Court in Miller explained that:

The distinction between being aware of racial

considerations and being motivated by them
may be difficult to make. This evidentiary
difficulty, together with the sensitive nature of
redistricting and the presumption of good faith
that must be accorded legislative enactments,
requires courts to exercise extraordinary
caution in adjudicating claims that a State has
drawn district lines on the basis of race.
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Appendix A

Id. at 916. The Supreme Court in Alabama Legislative

Black Caucus v. Alabama reaffirmed the characterizations
of “predominance” and the associated burden of proof. 575
U.S. 254, 272, 135 S. Ct. 1257, 191 L. Ed. 2d 314 (2015)
Plainly, “a plaintiff pursuing a racial gerrymandering
claim must show that race was the predominant factor
motivating the legislature’s decision to place a significant
number of voters within or without a particular district.”
Id. (quoting Miller, 515 U.S. at 916) (internal quotation
marks omitted). Here, Plaintiffs have shown racial
awareness—to be sure. But identifying awareness is not
the end of the inquiry.

To prove racial predominance, a “plaintiff must prove

that the legislature subordinated traditional race-neutral
districting principles . . . to racial considerations.” Miller,
515 U.S. at 916. The relevant “traditional race-neutral
districting principles,” which the Court has listed many
times, include “compactness, contiguity, respect for
political subdivisions or communities defined by actual
shared interests,” incumbency protection, and political
affiliation. Miller, 515 U.S. at 901; Bush v. Vera, 517 U.S.
952, 964, 968, 116 S. Ct. 1941, 135 L. Ed. 2d 248 (1996). A
plaintiff’s burden in a racial gerrymandering case is “to
show, either through circumstantial evidence of a district’s
shape and demographics or more direct evidence going to
legislative purpose, that race was the predominant factor
motivating the legislature’s decision.” Miller, 515 U.S. at
916. Plaintiffs have failed to show racial predominance
through either direct or circumstantial evidence or any
combination thereof.
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Appendix A

A. Circumstantial Evidence

Like the plaintiffs in Cromartie I, Plaintiffs here

seek to prove their racial gerrymandering claim through
circumstantial evidence—e.g., maps showing the district’s
size, shape, an alleged lack of continuity, and statistical
and demographic evidence. See 526 U.S. at 541-43. In
their post-trial memorandum, Plaintiffs maintain that the
“bizarre shape of District 6 reveals racial predominance.”
ECF 190 at 15. In opposition, the State raises its “political
motivation” defense by alleging that: (1) “the Governor and
the Legislature made a political judgment to reclaim the
State’s sovereign right to draw congressional maps rather
than cede that responsibility to the federal courts” and (2)
“the contours of the S.B. 8 map were themselves motivated
by serious political calculations.” State’s Post Trial Memo
at 5-6. Because “political and racial reasons are capable
of yielding similar oddities in a district’s boundaries,” the
Court in Cooper entrusted trial courts with “a formidable
task: [to] make ‘a sensitive inquiry’ into all ‘circumstantial
and direct evidence of intent’ to assess whether the
plaintiffs have managed to disentangle race from politics
and prove that the former drove a district’s lines.” Cooper,
581 U.S. at 308 (quoting Cromartie I, 526 U.S. at 546).
Here, the trial record underscores that Plaintiffs have
made no effort to disentangle race consciousness from
the political factors motivating District 6’s precise lines.
Therefore, the panel majority cannot undertake the
“sensitive inquiry” required. Because Plaintiffs have
fallen short, the panel majority takes a myopic view of
the record and pieces together slithers of circumstantial
evidence without comprehensively analyzing all pieces
of evidence to the contrary to craft a “story of racial
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Appendix A

gerrymandering.” See Majority Op. at 39 (citing Miller,

515 U.S. at 917).

First, I begin by explaining how the panel majority’s

narrow perspective incorporates no evidence that District
6’s lines were drawn solely based on race. Second,
I address how Plaintiffs’ inconsistent demographic
testimony is deficiently limited in scope to support the
conclusion that race predominated. Third, I discuss how
Plaintiffs’ similarly impaired simulation data fails to meet
the demanding burden as required by binding precedent.

i. The Shape of District 6

A point of agreement amongst the panel in this case

is that “[a] district’s shape can provide circumstantial
evidence of a racial gerrymander.” Majority Op. 35.
However, we diverge based on how we apply this
significant point, as the panel majority confuses evidence
that the Legislature sought to create a second majority-
Black district with evidence that race was the “dominant
and controlling” factor in the drawing of S.B. 8’s contours.

T he Supreme Cou r t ha s a ck nowledged t hat

notwithstanding the fact that circumstantial evidence—
like a district’s unusual shape—can give rise to an
inference of an “impermissible racial motive,” such a
bizarre shape “can arise from a ‘political motivation’ as
well as a racial one.” Cooper, 581 U.S. at 308; Cromartie I,
526 U.S. at 547 n.3.7 As such, the inquiry does not stop at

7. See also Shaw v. Hunt, 517 U.S. 899, 905, 116 S. Ct. 1894, 135
L. Ed. 2d 207 (1996) (“Shaw II”) (acknowledging that “serpentine
 80a

Appendix A

a rudimentary examination of the district’s lines in some

precincts. In Cooper, the Court further clarified this point
by articulating that “such evidence [of a ‘highly irregular’
shape] loses much of its value when the State asserts
partisanship as a defense, because a bizarre shape” may
be attributed best to political or personal considerations
for a legislator instead of racial considerations. See 581
U.S. at 308. The panel majority’s and Plaintiffs’ inability
to coherently parse these considerations is particularly
striking as there have been several instances in Louisiana
“where legislators wanted a precinct in their district
because their grandmother lived there.” See, e.g., Trial
Tr. 177 (testimony of Dr. Voss). Nonetheless, the panel
majority ignores this crucial step of the circumstantial
evidence analysis, eliding to other “mixed motive” cases.
Majority Op. 38.

However, a closer comparison between the instant

case and those prior “mixed motive” cases reveals how
inapt these comparisons are. In Shaw I, the Court stated
that in “exceptional cases,” a congressional district may
be drawn in a “highly irregular” manner such that it
facially cannot be “understood as anything other than an
effort to segregate voters on the basis of race.” Shaw I,
509 U.S. at 646-47 (internal citation and quotation marks
omitted); see also Richard H. Pildes, Richard Niemi,
Expressive Harms, “Bizarre Districts,” and Voting

district” was “highly irregular and geographically non-compact by

any objective standard”); Miller v. Johnson, 515 U.S. 900, 913, 115 S.
Ct. 2475, 132 L. Ed. 2d 762 (1995) (“Shape is relevant . . . because it
may be persuasive circumstantial evidence that race for its own sake,
and not other districting principles, was the legislature’s dominant
and controlling rationale in drawing its district lines.”).
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Appendix A

Rights: Evaluating Election-District Appearances After

Shaw v. Reno, 92 Mich. L. Rev. 483 (1993). Since that
utterance in Shaw I, the Court has never struck down
a map based on its shape alone. Nonetheless, the panel
majority functionally does so here on the basis of severely
cabined analyses of select precincts in the metropolitan
areas within the district. See Plaintiffs’ Br. 9-10; Majority
Op. 38.

The panel majority cites to Vera as a basis for its

conclusion that the circumstantial evidence in this case
is sufficient to show racial predominance. A closer look at
that case demonstrates how inapt that comparison is. In
Vera, the Court considered a challenge to three districts
in Texas’s reapportionment plan following the 1990 census.
517 U.S. at 956. There, as here, the Texas Legislature
admitted that it intentionally sought to draw three districts
“for the purpose of enhancing the opportunity of minority
voters to elect minority representatives to Congress.” See
Vera v. Richards, 861 F. Supp. 1304, 1337 (S.D. Tex. 1994).
However, the record there was replete with specific, direct
evidence that several members of the Texas Legislature
were moving around Black neighborhoods and precincts
into the new Congressional districts that they then hoped
to run for. Id. at 1338-40. The Court noted that the Texas
Legislature used a computer program called “REDAPPL”
to aid in drawing district lines. 517 U.S. at 961. The
software incorporated racial composition statistics for
the proposed districts as they were drawn on a “block-
by-block” level. Id. (noting that the “availability and use
of block-by-block racial data was unprecedented”). With
all of this in mind, the Court then rejected the state’s
incumbency protection defense because the district court’s
 82a

Appendix A

“findings amply demonstrate[d] that such influences

were overwhelmed in the determination of the districts’
bizarre shaped by the State’s efforts to maximize racial
divisions.” 517 U.S. at 975.

None of that is present in this case. This is not a case

like Vera, where the political motives of self-interested
electoral hopefuls directly attributed to the precise
placement of the electoral map lines that comprised
those racially gerrymandered districts. There is no § 5
preclearance letter in which the state legislature, speaking
with one voice, explains that the odd shapes in the map
result solely from “the maximization of minority voting
strength.” See id. The panel majority is correct in noting
that this is a mixed motive case. But to note this and then
to subsequently make a conclusory determination as to
racial predominance is hard to comprehend. Particularly
so where broad swaths of the record are not addressed.
In fact, a quick comparison of District 6 (depicted in lime
green below) to the “highly irregular” districts from
Vera (depicted in black outlines) underscores how the
district’s shape alone is insufficient evidence to prove
racial predominance. 8 Simply put, one of these is not like
the others.

8. While the following images are not at a 1:1 scale, the striking
visible differences between District 6 in S.B. 8 and the districts in
Vera—which more clearly evince an intent to carve up communities
and neighborhoods under the guise of invidious racial segregation—
show how just examining a few portions of the district is insufficient
to parse out whether race predominated. See 861 F. Supp. at 1336
(noting the borders “change from block to block, from one side of
the street to the other, and traverse streets, bodies of water, and
commercially developed areas in seemingly arbitrary fashion”).
 83a

Appendix A

District 6’s shape is not meaningfully comparable

to the series of substantially thinner, sprawling,
salamander-like districts that have been deemed
impermissible racial gerrymanders. In spite of these
glaring differences, the panel majority erroneously
concludes that a racial gerrymander occurred here
in spite of several inconsistencies in Plaintiffs’ expert
testimony and a limited review of the legislative and
trial records. See Cromartie II, 532 U.S. at 242-43. It
ignores the Court’s explicit determinations that evidence
of race-consciousness considered in conjunction with
other redistricting principles “says little or nothing
 84a

Appendix A

about whether race played a predominant role” in the

reapportionment process. Id. at 253-54 (emphasis in
original); Miller, 515 U.S. at 916 (legislatures “will
. . . almost always be aware of racial demographics”
in the reapportionment process); Shaw I, 509 U.S. at
646 (holding same). It also ignores the well-established
principles that “[p]olitics and political considerations
are inseparable from districting and apportionment
. . . [and] that districting inevitably has and is intended
to have substantial political consequences.” Gaffney v.
Cummings, 412 U.S. 735, 753, 93 S. Ct. 2321, 37 L. Ed. 2d
298 (1973); see also Vieth v. Jubelirer, 541 U.S. 267, 285,
124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004) (plurality opinion)
(acknowledging that districting is “root-and-branch a
matter of politics”); Trial Tr. 80 (testimony of Sen. Pressly)
(admitting that adjudging political considerations of
competing prospective legislative actions are “root and
branch”). Where there is a “partisanship” or “political
motivation” defense, more is required.

The panel majority errs in its analysis of the

metropolitan areas in District 6 because it relies solely on
the fact that the Legislature created a second majority-
Black district9 to show racial predominance. In Shaw I, the
Court declined to adopt the view that the panel majority
offers here—that evidence of “the intentional creation of
majority-minority districts, without more, always gives
rise to an equal protection claim.” 509 U.S. at 649 (cleaned
up). Compare id. (expressing no view as to whether this
action constitutes a de facto equal protection violation),

9. Vera, 517 U.S. at 958.

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Appendix A

with id. at 664 (White, J., dissenting) (“[T]hat should not

detract attention from the rejection by a majority [of the
Court] of the claim that the State’s intentional creation
of majority-minority districts transgressed constitutional
norms.”); see also United Jewish Orgs. of Williamsburgh,
Inc. v. Carey (“UJO”), 430 U.S. 144, 165, 97 S. Ct. 996, 51
L. Ed. 2d 229 (1977) (“It is true that New York deliberately
increased the nonwhite majorities in certain districts in
order to enhance the opportunity for election of nonwhite
representatives from those districts. Nevertheless, there
was no” equal protection violation); cf. Vera, 517 U.S. at
959 (“We thus differ from Justice Thomas, who would
apparently hold that it suffices that racial considerations
be a motivation for the drawing of a majority-minority
district” for strict scrutiny to apply) (emphasis in original).
In Bethune-Hill v. Virginia State Board of Elections, the
Court explained that “[e]ven where a challenger alleges
a conflict [with traditional redistricting principles], or
succeeds in showing one, the court should not confine” its
racial predominance “inquiry to the conflicting portions
of the lines.” 580 U.S. 178, 191, 137 S. Ct. 788, 197 L. Ed.
2d 85 (2017).

Here, the panel majority makes the mistake of stopping

at the district’s contours in the major metropolitan areas
in the state without fully considering or crediting the
abundance of evidence demonstrating these choices were
political. See Majority Op. 40 (“In sum, the ‘heat maps’
and demographic data in evidence tell the true story-
that race was the predominate factor driving decisions
made by the State in drawing the contours of District”
Six). Because the panel majority’s plain eye examination
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Appendix A

loses much of its value in the face of the state’s “political

motivation” defense, I now will contextualize the relevant
circumstantial evidence of legislative intent in this case,
including claims of political motivation.

ii. Expert Testimony

Plaintiffs’ circumstantial evidence elicited through

expert testimony fails to demonstrate that race was the
Legislature’s controlling motive in drawing S.B. 8. The
panel majority makes much ado of Mr. Michael Hefner’s dot
density map10 and testimony that the districting decisions
shaping District 6 in Lafayette, Alexandria, Baton
Rouge, and Shreveport could only be explained by racial
considerations. While the Court has accepted evidence
of a district’s shape and demographics to prove racial
predominance, it has required the plaintiff to disentangle
race from political considerations. See Cromartie I, 526
U.S. at 546. Here, Plaintiffs’ expert testimony fails to
account for several valid, non-racial considerations that
explain the district’s shape to impermissibly conclude
that race predominated. Cf. Chen v. City of Houston, 206
F.3d 502, 506 (5th Cir. 2000) (“[T]he plaintiffs’ burden in
establishing racial predominance is a heavy one.”).

Plaintiffs point to the district’s low compactness

scores and testimony from two experts opining that
the Legislature subordinated traditional redistricting
criteria to prove their case via circumstantial evidence.
Plaintiffs’ Br. 8-12. Notwithstanding my own evidentiary

10. Majority Op. 38-39.

 87a

Appendix A

determination that several traditional principles of

redistricting do explain District 6’s shape in S.B. 8,11 I now
explain that Plaintiffs’ offered circumstantial evidence is
insufficient to prove the predominance of race. See Chen,
206 F.3d at 506.

a. Demographic Evidence

The legislative record in this case is inundated with

both direct and circumstantial evidence that political
considerations predominated in the drafting and passing
of S.B. 8.12 Plaintiffs assert that their demographer,
Mr. Hefner, provided testimony that the “awkward
and bizarre shape” of the district suggests that race
predominated over traditional redistricting criteria.
Trial Tr. 304-05. He testified that the district was “very
elongated,” “contorted,” and narrow at points to attach
two centers of high BVAP together in one district. Trial
Tr. 286. However, Mr. Hefner also acknowledged that
incumbency and compliance with the VRA are also
important traditional redistricting criteria.13 Trial Tr. 293.

11. See infra Part I.B.i-ii.

12. See id.
13. Q. Are there additional criteria that can be considered?

A. Yes. Incumbency can be considered as to not putting

incumbents against each other. Preservation of political entities.
It’s similar to communities of interest but some specified as political
entries, which would be parishes, precincts, municipalities, those
that have political boundaries. Also, too, race plays a factor as well,
because that’s part of what the Voting Rights Act calls attention to
 88a

Appendix A

He also explained that political dynamics frequently factor

into redistricting. Trial Tr. 321. Ultimately, he concluded
that the Louisiana Legislature “can’t create a second
majority-minority district and still adhere to traditional
redistricting criteria” and that “race predominated in
the drafting” of S.B. 8. Trial Tr. 271-72. Put another way,
no permissible redistricting factor could explain S.B. 8’s
configuration.

But there are several logical gaps in Mr. Hefner’s

testimony. Mr. Hefner limited his examination of S.B. 8
to the factors of communities of interest, compactness,
and preservation of core districts. Thus, he “did not
review incumbency.” Trial Tr. 272. When asked about the
importance of incumbency on redistricting, he opined that
a legislature should avoid pitting incumbents against each
other to prevent very contentious and unproductive political
bodies that fail to “serve the needs of the people.” Trial Tr.
335. Mr. Hefner’s failure to consider the other politically
motived incumbency protection rationales provided by
S.B. 8’s sponsor14 demonstrates the unreliability of his
testimony. He further constrained his analysis to S.B.
8, H.B. 1, and Plaintiffs’ Illustrative Plan 1. He did not
review any “of the other plans with two majority black
districts” proposed in the 2024 redistricting session, nor
did he review “any of the amendments that were offered on
[S.B. 8] in the 2024 redistricting session.” Trial Tr. 317-18.

for consideration. So those are some of the other criteria that we

generally take a look at as we’re drafting redistricting plans. Trial
Tr. 293 (emphasis added).

14. See supra Part II.B.i.a.

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Appendix A

The gaps in Mr. Hefner’s analysis severely undercut

his opinion that race predominated over respecting
communities of interests and political subdivisions. It
strains credulity to say that one factor was controlling
over all others while simultaneously ignoring several
overriding factors. While Mr. Hefner criticized S.B. 8 for
the number of parish and community splits it contained,
he did not criticize the other maps he examined for that
purpose. For instance, his opinion that race predominated
in the drafting of S.B. 8 was based in part on the amount of
parish splits and divisions of cultural subdivisions tracked
by the Louisiana Folklife Program as compared to prior
maps. Trial Tr. 337. However, on cross-examination, Mr.
Hefner conceded that a district in H.B. 1 split the same
number of folklife areas as District 6 in S.B. 8. Trial Tr.
337-38. Additionally, Intervenors’ expert, Mr. Fairfax,
provided credible testimony that showed that S.B. 8
distributed its parish and municipal splits amongst the
districts more equitably in comparison to H.B. 1. Trial Tr.
385-89. Mr. Hefner did not account for such distinguishing
factors, which tended to challenge his broad conclusion
that two majority-minority districts could not be drawn
in Louisiana while adhering to traditional redistricting
principles.

Further inconsistencies persisted in his testimony.

Mr. Hefner did not offer the same critiques of the shapes
of districts in Plaintiffs’ Illustrative Plan 1. In fact, he
opined that that map “adhered to traditional redistricting
principles.”15 Notwithstanding this point, Mr. Hefner

15. Q. Let me just ask it this way. What does Plaintiffs’

Illustrative Plan Number 1, Exhibit PE-14, what does that represent?
 90a

Appendix A

agreed that District 5 of Illustrative Plan 1 spanned

approximately 230 miles from end to end.16 By Mr.
Hefner’s own calculus, District 5 of the plan is a district
that is virtually not compact at all. District 6 of S.B. 8
ranges nearly the same length, but he did not agree that
S.B. 8 “adhered to traditional redistricting principles.”
These shifting goalposts based upon whether Plaintiffs or
the Intervenors posited the question further demonstrates
that little to no weight can be placed on his testimony.
Thus, the obvious tension between his opinions based on
which party it benefits substantially diminishes its weight
here, but the panel majority erroneously accepts portions
of his testimony to justify its conclusion. It does so even
though none of Mr. Hefner’s testimony attempts to unpack
the entanglement of the two factors of race and politics
plainly present in this case.

A. That plan is a congressional plan that preserves District

2 as a traditional majority-minority district. It generally follows
what has been in place for the past couple of census cycles. And
the division of the rest of the state into districts largely follows.
It’s somewhat similar to the traditional boundaries that have been
used in the past. Some deviations, but generally overall it follows
that general configuration.
Q. Based on your review of this map, does it adhere to
traditional redistricting principles?
A. In my opinion it does.
Trial Tr. 275-76.
16. The Plan’s District Five contained a district spanning
roughly 230 miles from Washington Parish in the Southeastern tip
of the state all the way up to the Northern portion of the state, with
Ouachita Parish serving as a main population center. See Trial Tr.
341.
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Appendix A

Mr. Hefner testified that he did not speak to any

legislators from the 2024 session or consult any sources
within the Legislature informing him of the legislative
imperatives underlying S.B. 8. See Trial Tr. 321 (“Q.
And do you have any other basis for knowing what any
particular legislator thought about the district lines in
[S.B. 8] or why they supported them? A. I did see some
[television] interviews of some legislators after [S.B. 8]
was approved.”). Thus, his ultimate conclusion that race
predominated over any permissible factor is factually
unsupported because he failed to examine several
traditionally accepted factors of redistricting. Most
glaring is his failure to examine, analyze, or otherwise
critique S.B. 8’s incumbency protection considerations
or the Legislature’s rejection of amendments that solely
sought to increase BVAP within the district and added
additional parish splits. RI 42; Trial Tr. 573-74 (describing
how the legislature struck down an amendment “increased
the BVAP in both District 2 and District 6” in a bipartisan
vote because it added additional parish splits to the map);
Trial Tr. 575 (noting the Legislature’s bipartisan rejection
of efforts to just “mov[e] black precincts around for no
particular reason other than to do so”).

The legislative history of S.B. 8 demonstrates

that the Legislature took great consideration to avoid
merely lumping enough Black Voting Age Population
(“BVAP”) into two districts to satisfy the Robinson I
court. Mr. Hefner’s failure to account for the history of
amendments to S.B. 8 demonstrates how his narrative
of racial predominance in the Legislature disintegrates
upon review of the record. The Legislature rejected
amendments that solely sought to increase BVAP in
 92a

Appendix A

specific districts and were voted down and discouraged

by the bill’s proponents and author. See Trial Tr. 317-18.
As the legislative record shows, Senator Heather Cloud
of Avoyelles Parish introduced an amendment that
introduced an additional split in District 6, increasing the
number of parish splits in S.B. 8 to sixteen, one more split
than H.B. 1. Although Mr. Hefner criticizes the number
of parish splits in S.B. 8 to serve as evidence that the
Legislature racially gerrymandered here, he admittedly
did not know that Senator Cloud’s amendment was offered
to further protect Congresswoman Letlow’s seat by
moving her own constituents into Letlow’s district. JE
29 at 5-6. This extra parish split also narrows District 6
before it traverses through Alexandria. It also explains
why the district is narrower at that point and—in Mr.
Hefner’s view—bears tenuous contiguity.17 See Trial Tr.
293-94.

Senator Cloud described her amendment at the

Senate and Governmental Affairs Committee hearing

17. On a related note, the legislative record also established

that Rapides Parish is accustomed to split representation in a single-
member district capacity. Senator Luneau of Rapides Parish noted
that in the reapportionment process for State Senate districts, his
home parish answered to “six different [state] senators.” JE 34 at
9-10. Prior jurisprudence demonstrates that further segmentation
of parishes accustomed to splitting to achieve partisan goals. In
Theriot v. Parish of Jefferson, the Fifth Circuit held that no racial
gerrymander occurred where “the Parish was not unaccustomed to
splitting districts in order to achieve political goals.” 185 F.3d 477,
483 (5th Cir. 1999). Thus, the contours of the Rapides Parish area
in S.B. 8 cannot seriously be considered to be the product of racial
gerrymandering—as Plaintiffs allege—without more evidence than
mere conjecture.
 93a

Appendix A

as an amendment seeking to protect the only Republican

Congresswoman in Louisiana’s Congressional Delegation.
JE 29 at 13-14. Senator Cloud’s amendment was the only
one made during the legislative process that withstood
detailed examination by both houses of the Louisiana
Legislature. RE 42; JE 29 at 5-6. The only other
amendment that passed in committee was offered by
Representative Les Farnum of Calcasieu Parish. Trial Tr.
571-72. Representative Farnum introduced an amendment
before the House and Governmental Affairs Committee
that sought to make his constituents in Calcasieu Parish
in one whole district. Trial Tr. 572. While the amendment
advanced out of committee, it was removed from the
bill after substantial bipartisan opposition prompted a
floor vote to strip the amendment from S.B. 8. Trial Tr.
573-74. Particularly revealing is that S.B. 8’s legislative
history demonstrates how the Legislature actively
sought to prevent the gross contravention of traditional
redistricting principles in favor of just getting specific
districts to certain BVAP concentrations. See id. (detailing
the Legislature’s denial of amendment to subdivide
Baton Rouge into three congressional districts in favor of
increasing BVAP in District 2 by some amount).

The history of amendments to the bill do not fit the

creative narrative that Mr. Hefner paints in this case
to show racial predominance. In the light of all this
information publicly available in the legislative record,
Mr. Hefner cabined his analysis to just the final enacted
version of S.B. 8 and two other maps, without seeking
to get the full scope of the legislative environment that
created S.B. 8. Notably, the Court said in Cooper that
where political concerns are raised in defense of a map,
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Appendix A

evidence of non-compactness “loses much of its value . . .

because a bizarre shape . . . can arise from a ‘political
motivation’ as well as a racial one.” 581 U.S. at 308.
Furthermore, “political and racial reasons are capable
of yielding similar oddities in a district’s boundaries.”
Id. Here, Senator Glen Womack of Catahoula Parish, the
author of S.B. 8, addressed those reasons at numerous
points during the legislative session. His intent was
clear and consistent. JE 31 at 121-22 (statement of Sen.
Womack) (“We were ordered to draw a [second majority-
Black] district, and that’s what I’ve done. At the same
time, I tried to protect Speaker Johnson, Minority
Leader Scalise, and my representative Congresswoman
Letlow.”). He stated that he sought to draw “boundaries
in th[e] bill” to “ensure that Congresswoman Letlow
remains both unimpaired with any other incumbents and
in a congressional district that should continue to elect a
Republican to Congress for the remainder of this decade.”
JE 29 at 2 (Sen. Womack’s Remarks Before January 16,
2024 Senate Governmental Affairs Committee Hearing).
Based on this strong evidence of legislative will directed
at preserving political and personal interests during
the redistricting process, I would hold that Plaintiffs’
circumstantial demographic evidence cannot be taken in
whole or in part to satisfy its burden of showing that race
predominated in the drafting of S.B. 8.

b. Simulation Evidence

Neither does Plaintiffs’ simulation evidence move

the needle for them toward satisfying their stringent
burden of proof.. The panel majority likewise credits
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the marginally relevant testimony of Plaintiffs’ other

expert, Dr. Stephen Voss. Dr. Voss opined that simulation
techniques demonstrate that (1) S.B. 8 constitutes an
impermissible racial gerrymander because no other
legislative imperatives would create districts in those
forms; (2) the Louisiana Legislature “compromised”
various “traditional redistricting criteria” in drawing S.B.
8, and; (3) there “is not a sufficiently large and compact
African American population to allow [two majority-Black]
districts that would conform to traditional redistricting
criteria.” Trial Tr. 91.

When posed with the question of S.B. 8’s political

goals, Dr. Voss opined that “[i]f you’re not trying to
draw a second Black majority district, it is very easy to
protect Representative Julia Letlow.” Trial Tr. 108. This
commentary misses the mark entirely. Neither through
simulations nor testimony, Dr. Voss did not demonstrate
that it is possible to achieve all of S.B. 8’s main political
goals and generate extremely compact districts. On
cross-examination, he admitted that he did not “explore”
directing the software to prevent “double bunking” or
pairing of two specific incumbents. See Trial Tr. 175 (cross-
examination of Dr. Voss).

As such, Dr. Voss’s conclusion that only racial

considerations account for District 6’s shape flies in the
face of his testimony that permissible considerations
include regional representation, incumbency protection,
and various other personally politicized considerations
held by legislators in redistricting. Compare Trial Tr.
177-78 (admitting that the Legislature’s rationales given
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Appendix A

ordinarily constitute valid reasons justifying a map’s

shape), with Trial Tr. 180 (attempting to distinguish
those factors’ application in this case). At most, Dr. Voss
only measured or weighed two political motives at the
same time: (1) “sacrificing” Congressman Graves and (2)
protecting Congresswoman Letlow. Trial Tr. 110 (stating
that the Legislature could have complied with these two
specific goals and presented a map that is less offensive
to traditional redistricting principles); Trial Tr. 111-12
(stating same). With the aid of his simulations, he argued
that it would be easy to protect Congresswoman Letlow
by pulling her westward into a North Louisiana district
even if a second majority-Black district stretched up the
Mississippi River into Northeast Louisiana. But pulling
her district westward draws her closer to the population
bases supporting Speaker Johnson’s prominence in his
district Northwest Louisiana based district.

Dr. Voss neglected to address protecting the Speaker

of the House and Majority Leader at the same time
as protecting Congresswoman Letlow and cutting out
Congressman Graves. See id. On direct, Dr. Voss stated
that out of his 20,000 simulations, he did have difficulty with
securing Congresswoman Letlow and Speaker Johnson
without risking Majority Leader Scalise’s seat. Trial Tr.
140. Then on cross examination, Dr. Voss conceded that
his simulations could not consistently guarantee safe
seats for Speaker Johnson, Majority Leader Scalise,
and Congresswoman Letlow. Trial Tr. 140 (conceding
that many simulations jeopardized Scalise’s seat and
others pitted the Speaker against Letlow). Attempting
to rationalize why he could not account for these valid
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Appendix A

considerations, Dr. Voss testified on redirect that some

unknown number of simulations generated plans without
two majority-Black districts that also achieved these
political goals.

This testimony, while sensible in the abstract, is

nonsensical when applied to the appropriate legislative
and constitutional context. A rticle III, § 6 of the
Louisiana Constitution specifies that “the legislature
shall reapportion the representation in each house as
equally as practicable on the basis of population shown by
the census.” It is indelibly clear—seemingly to everyone
except Plaintiffs’ experts—that redistricting is a “root-
and-branch” political matter. See Vieth, 541 U.S. at 285;
Shaw, 509 U.S. at 662 (White, J., dissenting) (“[D]istricting
inevitably is the expression of interest group politics.”).
We are tasked with evaluating legislation that is the
product of the legislative body’s choice resulting from
a political process. For this reason, failing to evaluate a
politically charged defense that frequently yields oddly
shaped districts for personal and political goals of the
legislators involved cannot be adequate proof that meets
the demanding standard required of Plaintiffs.

Numerous current and former elected officials from

both major political parties testified that the legislative
aims raised in the 2024 session were (1) satisfying the
VRA, (2) protecting senior incumbents with influential
national positions, and (3) maintaining the sovereign
prerogative of the legislature. See, e.g., JE 31 (Rep.
Carlson) (“I can assure you this . . . we’re not here today
because we’re caving to any kind of political pressure. The
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Appendix A

fact of the matter is, like it or not, Judge Dick has said,
‘Either you do your job and draw the map, or I’ll draw
the map for you,’ period.”); Trial Tr. 47-48 (“[T]he only
reason we were there was because of the other litigation;
and Judge Dick saying that she -- if we didn’t” comply
with the VRA “she was going to” draw the State’s map for
them); Trial Tr. 81-82 (testimony of Sen. Pressly) (stating
that Judge Dick would draw the maps if the Legislature
did not, and would not consider political benefits to any
party or persons); Trial Tr. 368. In my view, Intervenor’s
expert, Dr. Cory McCartan, credibly demonstrated how
the limitations of Dr. Voss’s purported race-conscious
simulations actually failed to account for race in any
meaningful manner. Trial Tr. 196-97. Dr. McCartan
noted the substantial difference between stating that “a
simulation that uses a tiny bit of racial information doesn’t
produce black districts, and the extrapolating from there
to say that if you produce two black districts, it must be
extreme racial gerrymandering.” Trial Tr. 196-97. The
panel majority avoids this potent adverse testimony by
distinguishing Dr. McCartan’s work with his ALARM
team from the present case. Majority Op. 26-28.

The panel majority’s brief discussion of the limitations

on Dr. Voss’s simulation evidence is in tension with the
nature of the pivotal inquiry that this panel was convened
to undertake: To evaluate whether the Legislature—
and not a rebuttal witness’s own team—had subjugated
all traditional redistricting principles to yield a certain
result—i.e., the challenged district. Dr. McCartan’s
testimony credibly shows that simulations cannot prove
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the “impossibility” that Dr. Voss sought to prove,18 and that

Dr. Voss’s simulation methods added additional restraints
that in turn stopped generating results which would more
closely resemble the factors that the Legislature actually
considered in this case. Trial Tr. 196.

Setting aside the panel majority’s attempts to justify

the relevance of Dr. Voss’s simulations,19 the simulation
evidence in this case is precisely the type of inconclusive
evidence that insufficiently pits S.B. 8 in “endless beauty
contests” with other potential maps the Legislature could
have drawn but never would have realistically considered
for a myriad of reasons other than race. See Vera, 517 U.S.
at 977. Absent from the panel majority’s analysis of Dr.
Voss’s simulation testimony was his admission that “the
population tolerances required from real maps without
splitting precincts,” as required by Joint Rule 21, 20 “may
not be achievable with a simulation method” and likely
does not yield “feasible maps” in “many cases.” Trial
Tr. 152-53. This admission again demonstrates how this
evidence fails to encapsulate the pressing factors that the

18. Dr. Voss even acknowledged this, stating that in Louisiana

“the number of plans that meet all [traditional redistricting
principles] is probably bigger than the number of atoms in the entire
universe.” Trial Tr. 200-201; see also Trial Tr. 130.

19. Trial Tr. 179 (redirect examination of Dr. Voss); Majority

Op. at 28.

20. The Louisiana Legislature passed Joint Rule 21 in 2021

to establish criteria that would “promote the development of
constitutionally and legally acceptable redistricting plans.” Joint
Rule 21 (2021), https://www.legis.la.gov/legis/Law.aspx?d=1238755.
 100a

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Legislature actually considered. In sum, this evidence

does not satisfy Plaintiffs’ burden.

Through Voss’s and Hefner’s testimony, Plaintiffs

present a simple syllogism. (A) An unconstitutional racial
gerrymander occurs where traditional redistricting
criteria and other permissible factors cannot account
for the shape of the offending district. (B) District 6’s
shape in S.B. 8 cannot be explained by any permissible
reapportionment factors. (C) Thus, S.B. 8 constitutes an
unconstitutional racial gerrymander. The glaring gap
in the expert testimony results from the fact that both
Voss and Hefner did not account for numerous valid
justifications for District 6’s shape. Thus, it is disingenuous
to conclude that no permissible factors—such as protecting
incumbents, 21 eliminating the Governor’s political

21. Q. And so you mentioned the difference in configuration

between your Bill S.B. 4 and S.B. 8. Did you have any impression
about any rationale behind those different configurations?
A. So during the whole time I spent in redistricting, you don’t
have to be a redistricting expert to know that any time a new map
is drawn, it’s kind of like playing musical chairs. There is going
to be someone who is negatively impacted from an incumbency
standpoint. And of the six congressional districts, the question was
always if there was going to be a second majority black district
drawn, who would be negative -- who would be most negatively
impacted by this if we are -- again, we have --a new map has to
be drawn. So I believe that ultimately played into what map the
Legislature chose to support.
Trial Tr. 525-26; see also Trial Tr. 71 (testimony of Sen. Pressly)
(“There were certainly discussions on ensuring -- you know, we’ve
got leadership in Washington. You have the Speaker of the House
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opponents, 22 connected ethno-religious networks, 23 the

linkage of the District’s communities via the I-49 corridor

that’s from the Fourth Congressional District and we certainly

wanted to protect Speaker Johnson. The Majority Leader, we
wanted to make sure that we protected, Steve Scalise. Julia Letlow
is on Appropriations. That was also very important that we tried
to keep her seat as well.”); Trial Tr. 79 (testimony of Sen. Pressly);
Trial Tr. 63 (testimony of Sen. Seabaugh) (stating same).
22. See, e.g., Trial Tr. 527 (testimony of Sen. Duplessis) (“[A]s
[redistricting] relates to incumbency, there will be someone who is
negatively impacted, so the choice had to be made -- the political
decision was made to protect certain members of congress and
to not protect one member of congress and it was clear that that
member was going to be Congressman Garret Graves.”); Trial Tr.
369-71 (testimony of Rep. Landry) (stating same); Trial Tr. 60-61
(testimony of Sen. Seabaugh) (agreeing that “protecting” Speaker
Johnson, Majority Leader Scalise, and Congresswoman Letlow “is
an important [political] consideration when drawing a congressional
map”).
Q. Let me ask that again. Do you have an understanding if
one of the current congressional incumbents was drawn out of his
or her seat, so to speak, in Senate Bill 8? A. Congressman Graves
was targeted in the map, correct. Q. And were you surprised that
Congressman Graves was targeted in the map? A. No. Everyone
-- everyone knew that. All the legislators, the media reported it.
They have had a long-standing contentious relationship. Q. And
when you say “they,” who are you referring to? A. The Governor
and Congressman Graves.
Trial Tr. 369-71 (testimony of Rep. Landry).
23. Trial Tr. 466-67 (testimony of Pastor Harris).
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Appendix A

and Red River Basin, 24 veritable cultural similarities, 25

and shared educational and health resources amongst
residents of District 6, 26 among others—justify or explain
District 6’s shape.

24. Q. So in your experience as an elected official and a

community leader, does Congressional District 6 in S.B. 8 reflect
common communities of interest?
A. Yes, it does.
Q. And how so?
A. Well, I think the two that come most quickly to mind would
be the I-49 corridor and the Red River. Obviously, Shreveport itself
was founded by the clearing of the Red River. One of the big things
that helped make this area grow was navigation thereof. We had
leadership over the course of the last 50 years that’s worked very
hard towards trying to bring that back. You now have a series of
lock and dams, five of them, between here and where the river flows
into the Mississippi. That essentially mirrors the eastern side of
that district. When you add to it, the connecting factor of I-49,
that essentially makes Shreveport, Mansfield, Natchitoches, all
one general commuting area, all of those are connecting factors.
Trial Tr. 457-58 (testimony of former Mayor Glover) (emphasis
added).
25. See, e.g., Trial Tr. 467-68 (testimony of Pastor Harris)
(explaining that Baton Rouge, Alexandria, Lafayette, Natchitoches,
and Shreveport share far more cultural commonalities than any of
those cities and New Orleans).

26. See, e.g., Trial Tr. 457-58 (testimony of Mayor Glover)

(explaining that the shared Willis-Knighton, Ochsner/LSUS, and
Christus medical systems within District 6 provide the bulwark of
medical care to the persons of the region).
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Appendix A

Plaintiffs’ position ignores that the record as a whole

establishes that incumbency protection was the most
often stated motivating factor27 behind S.B. 8. Instead,
they adhere closely to a minority of voices within the
Louisiana Legislature. 28 Respectfully, I strongly disagree
with the panel majority’s narrow reading of the conflicting
demographic and statistical opinions offered to fashion
its conclusion that race was “the legislature’s dominant
and controlling rationale in drawing its district lines.”
See Miller, 515 U.S. at 913.

iii. Any Allegory to Hays or Application of its

Outdated Rationales is Misguided

Similarly difficult to comprehend is the panel

majority’s position that Hays provides this court with a
helpful allegory to make its determination. In Hays I and
Hays II, the district court invalidated congressional maps
with two majority-minority districts as impermissible
racial gerrymanders on Equal Protection grounds. See
Hays I, 839 F. Supp. at 1195; see also Hays v. Louisiana,
936 F. Supp. 360, 368 (W.D. La. 1996) (Hays IV). In Hays I,
the district court was confronted with an equal protection
challenge to a district bearing similarities to District 6.

27. As evidenced by the fact that all other, more compact maps
from the 2024 legislative session that also sought to comply with the
VRA died in committee. See, e.g., Trial Tr. 482 (testimony of Ms.
Thomas).

28. Trial Tr. 533 (testimony of Sen. Duplessis) (“I think some
of the members of the Shreveport delegation may have voted
against [S.B. 8], but it passedR overwhelmingly.”).
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Appendix A

The panel described the contested district as “an inkblot

which has spread indiscriminately across the Louisiana
map.” 936 F. Supp. at 364. Throughout Mr. Hefner’s and
Dr. Voss’s testimonies, they repeatedly stated, suggested,
and opined that Louisiana’s configuration of minority
populations today does not allow the Legislature to draw
a map with two minority-Black districts without violating
the Constitution.

But when confronted with these assertions on cross-

examination, each quickly equivocated stating that they
either “can’t offer an opinion on” whether “it’s impossible
to create a congressional plan with two majority-Black
districts that perform well on traditional redistricting
principles,” Trial Tr. 318-320, or that the simulations could
not account for other traditional redistricting principles
that the Legislature considered in drafting S.B. 8, Trial
Tr. 160-61. Aside from the limited testimony parroting
the dated proposition derived from the Hays litigation,
Plaintiffs ignore the fact that Hays does not account for
drastic changes in the state’s population dynamics that
have occurred since the late 1990s. 29 The decennial census
has occurred three times since the ink dried on the last
iteration of the Hays case.

It is for this reason, among others, that the Middle

District of Louisiana rejected every formulation of
the argument that the “Hays maps [were] instructive,
applicable, or otherwise persuasive.” See 605 F. Supp.
3d 759, 852 (M.D. La. 2022); see also id. at 834. Not only

29. See supra, p. 4.

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Appendix A

was this sentiment accepted by the Fifth Circuit, 30 but it

was also accepted by the Louisiana Legislature during
the 2024 redistricting session. Members of the House and
Governmental Affairs Committee repeatedly rejected the
assertion that Hays preempts S.B. 8’s design of District
6. JE 31 at 117-18. During the testimony of Mr. Paul
Hurd, counsel for Plaintiffs in this case, Representative
Josh Carlson of Lafayette Parish clarified that Robinson
presented the Legislature with the “complete opposite
scenario than [Hays] 20 years ago.” See JE 31 at 117.
Despite several attempts to analogize S.B. 8 to the Hays
cases, no legislator on the committee bought the argument
that the State could not draw a map that included two
majority-Black districts. See JE 31 at 115-18.

In response to this repudiation of Hays-like rationales

to abandon S.B. 8, Plaintiffs’ own counsel conceded that
a congressional map with two majority-minority districts
was constitutionally valid during his testimony during the
2024 legislative session. JE 31 at 118. During that same
House and Governmental Affairs Committee meeting,
Mr. Hurd testified that “I believe that my districting plan
that I’ve handed in and I did it for an -- an example is as
close as you can get to a non-racially gerrymandered
district and get to two majority-minority districts, and
it does.” JE 31 at 31 (page 118). He further stated that
“[t]here are abilities to draw a [second] compact contiguous
majority-minority district” in the State of Louisiana. Id.
This evidence in the record demonstrates precisely how

30. See 86 F.4th at 597 (determining that the Middle District

of Louisiana’s preliminary injunction holdings were not clearly
erroneous).
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Appendix A

Plaintiffs’ circumstantial case fails to meet their burden.

Their case is directly rooted to expert demographic
and simulation testimony that merely repackages an
outdated and factually unsupported thesis: that any
congressional map with two majority-Black districts must
be unconstitutional for the reasons derived from data and
occurrences from nearly three decades ago. See Hays I,
839 F. Supp. at 1195; Robinson, 605 F. Supp. 3d at 852. To
avoid addressing these inconsistencies apparent from the
record, the panel majority blends the circumstantial and
direct evidence together to conclude that race played a
qualitatively greater role in S.B. 8’s drafting. A look at the
direct evidence shows how this conclusion is unwarranted
based on the totality of the legislative record.

B. Direct Evidence: Legislators’ Intent

The panel majority states that it “acknowledges

that the record includes evidence that race-neutral
considerations factored into the Legislature’s decisions.”
Majority Op. 43. However, it disregards the mountain
of direct evidence showing that the political directives
“could not be compromised,” as each of the other proposed
bills that did not achieve those goals were not seriously
considered by the Legislature. See Bethune-Hill, 580
U.S. at 189. The panel majority embraces only the quotes
from the legislative session that refer to the Legislature’s
decision to exercise its sovereign prerogative to draw its
maps under the Louisiana Constitution following Robinson
I. Majority Op. 41-42. It cites some language from Senator
Womack, the bill’s sponsor, stating that he drew the map
to create two majority-Black districts as direct evidence
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Appendix A

of racial predominance. It quotes the statements from

select members of the Legislature at functionally every
time they mention Robinson I and the Governor’s decision
to place the task of drawing new electoral maps into the
hands of the Legislature. 31

These statements—either alone or crammed together

with the circumstantial evidence—are insufficient to show
racial predominance. The panel majority’s conflation of
evidence of race consciousness for the purpose of avoiding
successive § 2 violations under the VRA with racial
predominance is unprecedented. Its decision to do so after
it acknowledges that evidence of race consciousness does
not constitute evidence of racial predominance is also
somewhat hard to comprehend. Majority Op. 34 (citing
Shaw I, 509 U.S. at 646; Milligan, 599 U.S. at 29). Through
contextualizing the totality of the legislative record, I
will show precisely why those statements referencing
Robinson I do not prove racial predominance.

31. Indeed, it is clear that the district court ordered the

Legislature to draw a map consisting of two majority-Black districts.
As result, Plaintiffs assert that race was not only the predominant
factor, but the only factor. Assuming arguendo, how then can we
reconcile the assertion that race was the only factor considered
when drawing S.B. 8 with the existence of several other maps,
including S.B. 4 which contained even more compact districts than
the adopted map? How is it possible that each proposed map, and
the ensuing amendments, resulted in distinct district renderings?
Neither Plaintiffs nor the majority broach this issue because they
would be forced to confront what is clear: that factors beyond race,
including political considerations, went into the drawing of the maps
that included two majority-Black districts, including S.B. 8.
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Appendix A

i. Legislative Record

Unlike Cooper—which turned on “direct evidence of

the General Assembly’s intent in creating the [challenged
district], including many hours of trial testimony subject to
credibility determinations,”32 —this case involves limited
trial testimony regarding legislative intent. Although
a “statement from a state official is powerful evidence
that the legislature subordinated traditional districting
principles to race when it ultimately enacted a plan
creating [] majority-black districts,” the Court has never
expressly accepted statements evincing an intent to create
a majority-minority district alone as prima facie evidence
that a racial gerrymander occurred. See Shaw II, 509 U.S.
at 649; see also Miller, 515 U.S. at 917-19.

a. Incumbency Protection

First and foremost, it strains credulity to relegate the

potent evidence of political considerations and incumbency
protection to a minor factor in the Legislature’s decisions
in this case. The trial record emphatically shows that S.B.
8’s sponsor, Senator Womack, spoke continuously and
fervently about his aims to protect certain incumbents—
as well as to encase specific communities of interest within
District 6. The record shows that while the Legislature
considered race, it only considered it alongside other
political and geographic considerations. See Cromartie II,
532 U.S. at 236. The legislative record reveals that Senator
Womack’s personal goals necessitated the protection of

32. Cooper, 581 U.S. at 322.

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Appendix A

certain members of Louisiana’s Republican delegation in

Congress. See, e.g., JE 31 at 25.

On January 16, 2024, the first day of the 2024

legislative session, Senator Womack introduced his bill
to the Senate and Governmental Affairs Committee. See
generally JE 29 (transcript of committee meeting). In
his opening statement, Senator Womack averred that
“[t]he boundaries in this bill I’m proposing ensure that
Congresswoman Letlow remains both unimpaired with
any other incumbents and in a congressional district that
should continue to elect a Republican to Congress for the
remainder of this decade.” JE 29 at 1. He continued to
assert that the bill ensured four safe Republican seats
and a “Louisiana Republican presence in the United
States Congress [that] has contributed tremendously
to the national discourse.” JE 29 at 2. He described the
personal pride that resulted from the fact that the state’s
congressional delegation included the Speaker of the U.S.
House of Representatives, Mike Johnson, and House
Majority Leader Steve Scalise. Id. He went on to state
that “[]his map ensures that the two of them will have
solidly Republican districts at home so that they can focus
on the national leadership that we need in Washington,
DC.” JE 29 at 2.

After the bill passed to the House and Governmental

Affairs Committee for a hearing on January 18, 2024,
Senator Womack stated that he sought to protect
Representatives “Scalise, as well as Johnson, Letlow,”
and “Higgins.” JE 31 at 25. Senator Womack left one
“odd man out” of the delegation. He directly stated that
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Appendix A

one member of the state’s Republican delegation that was

not part of the “Republican team.” See id. And that one
member was Congressman Garret Graves. See id. Thus,
it is convincing to credit Senator Womack’s unwavering
assertions that these political considerations were the
“primary driver[s]” of S.B. 8. See id.

In that same committee hearing, the line of questioning

shifted to comparing S.B. 8 to the rejected S.B. 4 map
proposed by Senator Ed Price of Ascension Parish
and Senator Royce Duplessis of Orleans Parish. While
comparing his map to S.B. 4, Senator Womack agreed that
his bill proposed districts that were less compact than S.B.
4. Id. But he attributed the less compact shape of District
4 in S.B. 8—which impacted District 6’s compactness—to
his attempt to comply with the VRA while also protecting
Speaker Johnson and Congresswoman Letlow in North
Louisiana and Majority Leader Scalise in Southeast
Louisiana “[a]t the same time.” See JE 31 at 22-25;
31. He continued to state that his map diverged from
S.B. 4’s configuration which he believed to threaten
Congresswoman Letlow’s chances of remaining in the
House of Representatives. See JE 31 at 25-26.

This is precisely because S.B. 4 proposed that District

Five would constitute a more compact, second majority-
minority district that enveloped Congresswoman Letlow’s
home precinct.33 Trial Tr. 524 (testimony of Sen. Duplessis)

33. Trial Tr. 524 (testimony of Sen. Duplessis) (“I recall the
[population] numbers being very similar” between S.B. 4 and S.B.
8, with “[t]he main difference between the two maps . . . [being] just
the[ir] geographic design[s]”). Opponents of S.B. 8 suggested that
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Appendix A

(“The map that I co-authored with Senator Price, the

second majority-Black district went from Baton Rouge
up to northeast Louisiana, the Monroe area.”). Senator
Womack agreed with the characterization that while the
Legislature’s Democratic caucus supported S.B. 4 for a
myriad of reasons, he offered this “political map” to protect
his personal political interests as well as Louisiana’s
standing in the national conversation. See JE 31 at 26.
In an exchange with House and Governmental Affairs
Committee Chairman Gerald Beaullieu of Iberia Parish,
Senator Womack explained that he sought to protect the
national interests of the state’s conservative majority
leadership through protecting its most established
leaders. JE 31 at 26-27. Senator Womack declared that
“[i]t’s bigger than just us,” and that Louisiana’s more
influential members of Congress should be protected to
elevate the state based on his view of the state’s “poor
position.” JE 31 at 27. Before amendments were offered,
Senator Womack and Chairman Beaullieu agreed that
S.B. 8 was “able to accomplish what the [Middle District
of Louisiana] has ordered through [the] map, and also

the bill does not actually seek to protect Letlow because it “puts too
many votes in the south” or Florida Parishes of District Five. JE 34
at 6 (“I applaud [Sen. Womack] for having stated that [protecting
Congresswoman Letlow] is one of the objectives of this bill, but
this bill doesn’t do that.”). These assertions were mere conjecture
that: (A) proposed no other reasonable or possible alternative map
and sought to risk the probable liability after a full trial in the Middle
District of Louisiana; (B) did not consider the fact that the alternative
maps introduced in the legislative session placed Congresswoman
Letlow in far less favorable positions. See Trial Tr. 560 (testimony
of Commissioner Lewis) (stating that S.B. 4 and H.B. 5 placed
Congresswoman Letlow in the second majority-Black district).
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Appendix A

. . . protect[s] the political interest[s]” raised by Senator

Womack. Id.

The panel majority minimizes the political reasoning

behind the map’s contours but cites this exact quote from
the exchange between Chairman Beaullieu and Senator
Womack as direct evidence of racial predominance.
Majority Op. 43. The panel majority ignores key pieces
of information from the trial record to suggest its
conclusion of “racial gerrymandering,” where none
exists. Regrettably, it subjugates the copious evidence
of the overarching political motives in the Legislature.
Respectfully, the panel majority ignores wholesale
references to partisan politics and incumbent protection
in its direct evidence analysis, only to throw it in as
an aside before reaching its ultimate conclusion. See
Majority Op. 43. It “acknowledge[d]” that “race-neutral
considerations factored into the Legislature’s decisions,
such as the protection of incumbent representatives.”
Majority Op. 43. It then cites trial testimony from Senator
Pressly and Senator Seabaugh agreeing that protecting
the Republican leadership in Washington played a part
in the legislative session. Id. (citing Trial Tr. 60, 71, 69).

This narrow examination of the trial record stops short

of corroborating whether Plaintiffs actually satisfied their
burden of disentangling race from politics. Furthermore,
the evidence the panel majority pieces together from
trial is far from the only evidence of political motives
adduced from the numerous fact witnesses serving in the
Legislature.
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Appendix A

Take for instance the trial testimony of Representative

Mandie Landry of Orleans Parish, who testified to the
“fear among Republicans that if they” failed to pass
a map before the Robinson I trial “that the [Middle
District of Louisiana] would draw one that wouldn’t be
as politically advantageous for them.” Trial Tr. 367-68.
She then said the quiet part out loud—that “everyone
knew that” Governor Landry “wanted Congressman
Graves out.” Trial Tr. 370. Her unrefuted testimony
demonstrated that S.B. 8 was “the Governor’s bill” and
that the Republican delegation’s leadership supported
it. See id. Representative Landry also noted that there
were “a couple dozen bills [addressing] other issues that
we understood were the Governor’s bills,” each tracking
an item addressed in the Governor’s call for a special
session. 34 Trial Tr. 371 (explaining that the Legislature

34. The relevance of Governor Landry’s involvement in S.B.

8 cannot be overstated and is not even mentioned in a footnote by
the majority. The best evidence of his involvement can be gleaned
from his remarks to the Legislature at the opening of the 2024
Extraordinary Legislative Session. To assert that the Louisiana
Legislature confronted this redistricting issue solely at the
behest of the district court is plainly unsupported based on the
Governor’s statements and contradicts the language of Article III,
§ 6 of the Louisiana Constitution which states that “the legislature
shall reapportion the representation in each house as equally as
practicable on the basis of population shown by the census.” Governor
Landry—a lawyer, a former Congressman of District 3, and the
former Attorney General of Louisiana who “did everything [he] could
to dispose of [the Robinson] litigation,” and who was well aware of
the redistricting process—seized the initiative and called upon the
Legislature to exercise its sovereign prerogative (and the legislative
obligation) to draw the map. During his remarks, when he stated
that the district court handed down an order, he specified that the
 114a

Appendix A

was “also discussing the [Louisiana] Supreme Court

maps” and a bill to abolish the jungle primary system to
move to “closed primaries” limited to registered party
voters); see also JE 8 at 1-2 (calling for the Legislature to
convene to draft new legislation and amendments relative
to the election code, Louisiana Supreme Court districts,
Congressional districts).

From Representative Landry’s time in the House

Chamber during prior legislative sessions and the 2024
legislative session, she noted “hundreds” of discussions
with House Republicans that made clear that any
legislation that contradicted the political dynamics around
S.B. 8 were non-starters. Trial Tr. 375. Representative
Landry testified that these political discussions “had been
going on since the Governor was elected among us and
[in] the media” and “increased [in frequency] as we got
closer to [the Governor’s] inauguration.” Trial Tr. 370-71.

Louisiana Public Service Commissioner Davante

Lewis also testified at trial as to the overarching,
dominant political objectives of the 2024 legislative
redistricting session. With years of experience working in
the state capitol as a legislative aide, lobbyist, and elected

order was for the Legislature to “perform our job... our job that our
own laws direct us to complete, and our job that our individual oaths
promise we would perform.” JE 35 at 10. He continued by asserting
that “[w]e do not need a federal judge to do for us what the people of
Louisiana have elected you to do for them. You are the voice of the
people, and it is time that you use that voice. The people have sent
us here to solve problems, not to exacerbate them, to heal divisions,
not to widen them.” JE 35 at 11.
 115a

Appendix A

official, he provided ample evidence of what transpired

during the 2024 legislative session. Trial Tr. 562 (stating
that he “knew the entire [Senate] committee” because he
“had worked with them” in the Legislature for “over eight
years”). Commissioner Lewis explained that there were
two other redistricting maps that did not advance to the
full floor for votes: S.B. 4, sponsored by Senators Price
and Duplessis, and H.B. 5, sponsored by Representative
Marcelle. Trial Tr. 560. He stated that both of those maps
placed Congresswoman Letlow in the second majority-
Black congressional district, with Congressman Graves in
a safe Republican seat. See Trial Tr. 560 (“Q. How many
majority black districts were in the map[s]? A. Two. Q.
Who currently represents those districts? A. It would
be Congressman Carter and Congresswoman Letlow.”);
Trial Tr. 524 (“The main difference between the two maps
. . . was just the geographic design of the map.”).

Commissioner Lewis recounted that he testified

in favor of S.B. 4 before the Senate and Governmental
Affairs Committee on January 16, 2024. Trial Tr. 560-61.
He testified that S.B. 4 did not advance out of committee
on that day. Trial Tr. 563. He stated that the vote “came
down on party lines,” and that “[a]ll Republicans voted
against it.” Trial Tr. 563. From this testimony, it is safe
to say that more compact bills that included two majority-
Black districts but did not protect the right Republican
incumbents were effectively dead on arrival.

A clear example of this sentiment in action in the

legislative record comes from Representative Marcelle’s
statements in front of the House and Governmental Affairs
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Appendix A

Committee on January 17, 2024. Less than twenty-four

hours after S.B. 4 was shot down in committee on purely
partisan lines, Representative Marcelle voluntarily pulled
H.B. 5 from consideration. She stated that her reasons for
doing so were based on “knowing what the politics are at
play.” JE 37 at 6. She further stated that any “[b]ill that
was very similar” to H.B. 5 and S.B. 4 would “probably
never make it to the floor.” JE 37 at 6.

Senator Duplessis’s trial testimony provides even

more context dating back to the initial 2022 legislative
redistricting session. As a member of the House and
Governmental Affairs for that session, Senator Duplessis
“traveled for months across the state and conducted
roadshows and listened to the community” to assess
what they would like to see in the redistricting process. 35
Trial Tr. 513-14. He witnessed countless perspectives
from voters across the state that called for fair maps that
would reflect the state’s population and comply with the
VRA. See Trial Tr. 515. Recalling the session that followed
the roadshow process, Senator Duplessis explained that
legislation featuring an electoral map that included
two majority-Black districts were “all voted down”
in committee. Trial Tr. 515. In spite of the populace’s
clear expression for the Legislature to pass fair maps36
35. See, e.g., Power Coalition, Legislative Redistricting
Roadshow Comes to Alexandria on Tuesday, November 9, 2021,
(Nov. 9, 2021), https://powercoalition.org/legislative-redistricting-
roadshow-comes-to-alexandria-on-tuesday-november-9-2021/.

36. Indeed, the Legislature’s deliberative process was informed

by community perspectives that demonstrated the unity of interests
behind an electoral map that included two majority-Black districts.
 117a

Appendix A

the Legislature ultimately chose H.B. 1. He continued

to explain that the Legislature convened for a special
redistricting session in June 2022 after the preliminary
injunction decision in Robinson I. Trial Tr. 517. He testified
that several bills introduced in that special session would
have complied with the VRA as ordered by the Middle
District of Louisiana and adhered to traditional districting
principles. Trial Tr. 518. Ultimately, none were adopted in
that session for the same reasons that S.B. 4 and H.B. 5
failed; they were not supported by the Governor and the
Republican delegation’s leadership.

Senator Duplessis further contended that the

Governor’s influence over S.B. 8 led to its quick passage
in the Legislature. Trial Tr. 525. Noting the Governor’s
position “coming off an election with no runoff,” Senator
Duplessis testified that “[the Governor’s] support would
have a lot of influence on what does and doesn’t get passed.”
Trial Tr. 525. He stated that after Senator Womack’s bill
was filed “it became clear that that was the map that
Governor Landry would support.” Id. He continued to
state that one does not “have to be a redistricting expert
to know that any time a new map is drawn,” that “[t]here
is going to be someone who is negatively impacted from an
incumbency standpoint.” Id. On the floor of the Legislature
during the 2024 session, Senator Duplessis noted that

This sharply contrasts with the situation in Vera. See 861 F. Supp. at
1334 (“The final result seems not one in which the people select their
representatives, but in which the representatives have selected the
people.”). Members of both major political parties in the Legislature
attended the nearly dozen roadshows across the state and heard this
ubiquitous message.
 118a

Appendix A

Senators Womack and Stine consistently talked about

“the importance of protecting certain elected officials.”
JE 30 at 20; Trial Tr. 527. When questioned about this
statement at trial, he stated that “the political decision
was made to protect certain members of Congress and to
not protect one member of Congress and that it was clear
that that member was going to be Congressman Garret
Graves.” Trial Tr. 527.

After the floor was open to amendments to S.B. 8 in

the House and Governmental Affairs Committee, Senator
Womack and Representative Michael Johnson of Rapides
Parish noted that S.B. 8 was not drafted “in a vacuum” and
that the congressional map would affect people in Senator
Womack’s own State Senate district. JE 31 at 45-46.
Senator Womack accepted that while some Republicans
may give him “a lot of heat” for the decision to draw a map
that included two majority-minority districts, he agreed
with Representative Johnson that S.B. 8 “present[s] a map
that achieves all the necessary requirements [of a valid
map] and . . . [is] the best instrument that [he] could come
up with.” JE 31 at 46.

Thus, the legislative record in this case reveals the

true “dominant and controlling” factors driving the
adopted map’s boundaries. See Miller, 515 U.S. at 913One
such factor was the need to protect every member of
Louisiana’s Republican delegation in the U.S. House
of Representatives except for Congressman Graves.
That was the criterion that “could not be compromised.”
See Bethune-Hill, 580 U.S. at 189 (quotation omitted).
On this point, not even S.B. 8’s detractors—either at
 119a

Appendix A

trial or during the legislative session—attempted to

debunk or attack this offered rationale. See Trial Tr.
71 (testimony of Sen. Pressly) (“There were certainly
discussions [in the Republican Delegation] on ensuring”
that Speaker Johnson, Majority Leader Scalise, and
Congresswoman Letlow were protected); Trial Tr.
76-77 (agreeing that a “Republican would be likely
to lose in a second majority-Black district” like the
other maps proposed in the Legislature); Trial Tr. 61
(testimony of Sen. Seabaugh). With all of this context,
it becomes indelibly clear that Governor Landry’s and
the Republican delegation’s decisions to protect Speaker
Johnson, Majority Leader Scalise, and Congresswoman
Letlow and cut out Congressman Graves shows that
political motivations “could not be compromised” during
the redistricting process. See Bethune-Hill, 580 U.S.
at 189. Thus, the overwhelming evidence of the goal of
incumbency protection in the legislative record shows that
Plaintiffs have failed to meet their burden to prove racial
predominance in this “mixed motive” case, as required by
Supreme Court precedent.

b. Other Traditional Redistricting Principles

Respected in S.B. 8

The evidence in the record as to the communities of

interest contained within S.B. 8 substantially undermines
the assertion that race predominated in the bill’s drafting.
The Supreme Court has warned that “where the State
assumes from a group of voters’ race that they ‘think alike,
share the same political interests, and will prefer the same
candidates at the polls,’ it engages in racial stereotyping
 120a

Appendix A

at odds with equal protection mandates.” Miller, 515

U.S. at 920. Notably, this record is flush with community
of interest evidence that rebuts the allegations of racial
stereotyping. See Theriot, 185 F.3d at 485.

There are tangible communities of interest spanning

District 6. The panel majority cannot plausibly conclude
that the evidence compels a determination that there are
no tangible communities of interest contained in District
6. Unlike in Miller in which the Court was presented with
a comprehensive report illustrating the fractured political,
social, and economic interests within the district’s Black
population, this court was only presented with trial
testimony subject to credibility determinations. Miller,
515 U.S. at 919.

“A district may lack compactness or contiguity—due,

for example, to geographic or demographic reasons—
yet still serve the traditional districting goal of joining
communities of interest.” Cromartie I, 526 U.S. at 555
n.l (Stevens, J., concurring). A determination that race
played a predominant role—over incumbency protection,
communities of interest, compactness, and contiguity—is
crucial to Plaintiffs’ case. However, the Plaintiffs rely on
this court solving every conflict of fact in their favor and
accepting their inferences in order to hold that they have
satisfied their burden of proof. The Court has advised
courts that “[w]here there are such conflicting inferences
one group of them cannot, be[] labeled as ‘prima facie
proof.’” Wright v. Rockefeller, 376 U.S. 52, 57, 84 S. Ct. 603,
11 L. Ed. 2d 512 (1964). If one inference were to be “treated
as conclusive on the fact finder,” it would “deprive him of
 121a

Appendix A

his responsibility to choose among disputed inferences.

And this is true whether the conflicting inferences are
drawn from evidence offered by the plaintiff or by the
defendant or by both.” Id. The record does not support
the panel majority’s view that Plaintiffs’ evidence has
established a prima facie case compelling this panel,
despite conflicting inferences which could be drawn from
that evidence, to hold that the State drew S.B. 8 solely on
the basis of race. See id.

The panel majority clings to rationales from Hays,

averring that its descriptions of cultural divides are still
true today. It bears repeating that—considering the long
passage of time and trends of cultural integration over the
last few decades—it is unreasonable and untenable for this
court to conclude “much of the ‘local appraisal’ analysis
from Hays I remains relevant to an analysis of S.B.8.”
See Majority Op. at 53-54. Citing the map’s divisions of
the Acadiana region, the majority contends that S.B. 8
“fails to take into account Louisiana’s diverse cultural,
religious, and social landscape in any meaningful way.”
Majority Op. 55 n.11. But the panel majority’s narrow
view rooted from its cursory consultation of select cultural
historical sources and Hays sharply conflicts with decades
of electoral history.

Several witnesses that testified in this case stated

that Louisiana’s political subdivisions and geographical
and cultural hotspots are routinely split in different
electoral districts. Instead of evaluating it based on the
evidence in this case, the panel majority condemns S.B. 8
for its multiple divisions of the “strong cultural and ethnic
 122a

Appendix A

groups” in the Acadiana area. 37 At first glance, the panel

majority’s aim is noble and sensible. But the complexity
of relationships between populations within the Acadiana
area, as well as its geographic composition, do not promote
one unitary community of interest. In 1971, the Louisiana
Legislature passed a resolution officially recognizing
and protecting the “traditional twenty-two parish Cajun
homeland.” 38 The Acadiana Delegation in the Legislature
provides the following map of Acadiana and segments the
often referredto Cajun Heartland (in darker red) from the
rest of Acadiana. 39

37. The panel majority also paints with a broad brush to

describe the region, but its high-level discussion assumes that two
distinctive cultures that have learned how to live harmoniously
in a large shared geographic region morphs those distinctive
communities into a homogenous, unitary community of interest.
Cajun and Creole populations have different histories, languages,
food, and music. In my view, the intriguing relationship between
Cajuns and Creoles may lend itself to noting that they do not neatly
fit into a unitary community of interest. Somewhat respecting this
notion, the Legislature has consistently segmented the Acadiana
area into multiple congressional districts over the past few decades.

38. Acadiana Legislative Delegation, (last visited April 29,

2024), https://house.louisiana.gov/acadiana/#:~:text=Acadiana%20
o f t e n % 2 0 i s % 2 0 a p p l i e d % 2 0 o n l y, s o m e t i m e s % 2 0 a l s o % 2 0
Evangeline%20and%20St.

39. Id. (“Acadiana often is applied only to Lafayette Parish and

several neighboring parishes, usually Acadia, Iberia, St. Landry,
St. Martin, and Vermilion parishes, and sometimes also Evandeling
and St. Mary; this eight-parish area, however, is actually the ‘Cajun
Heartland, USA’ district, which makes up only about a third of the
entire Acadiana region.”).
 123a

Appendix A

Under the delegation’s definition, the Acadiana

parishes contain portions of three of the state’s five major
population centers: Lake Charles, Lafayette, and the
outskirts of Baton Rouge.40 Acadiana stretches from the
marsh lands in St. Mary Parish all the way up to Avoyelles
Parish in the Red River Basin. Importantly, the majority
ignores the fact that the twenty-two parishes that lie
within this corner of the state have been segmented into
multiple single-member congressional districts since the
1970s.41

40. See id.

41. Even if the panel majority restricts its description of
Acadiana into the “Cajun Heartland” parishes, see supra n.40, it
also cannot account for the fact these have been routinely split into
multiple congressional districts for decades. The following maps are
retrieved from shapefile data compiled and organized by professors
from the University of California at Los Angeles. Jeffrey B. Lewis,
Brandon DeVine, Lincoln Pitcher, & Kenneth C. Martis, Digital
Boundary Definitions of United States Congressional Districts,
 124a

Appendix A

The following map demonstrates the congressional

districts for the majority of the 1970s. Notably it splits
Acadiana into three congressional districts:

[GRAPHIC 13]

Continuing to the 1980s, the Legislature continued to

segment Acadiana for another decade:

1789-2012 (2013) (datafile and code book generating district overlays),

https://cdmaps.polisci.ucla.edu.
 125a

Appendix A

Even the congressional districts drawn by the Hays

panel were no different on this front, also splitting up the
Acadiana area into multiple districts:42

42. 936 F. Supp. 360, 372 (W.D. La. 1996) (“The State of
Louisiana is directed to implement the redistricting plan drawn
by this court and ordered implemented in Hays II.”). The judicially
created map split Acadiana into districts 3, 5, 6, and 7.
 126a

Appendix A

[GRAPHIC 15]

Neither did the congressional districts enacted after

the turn of the millennium keep Acadiana whole:43

43. See Act 10, H.B. 2 (2001) (splitting Acadiana into four
congressional districts).
 127a

Appendix A

Another decade passes, and the Legislature carves

up Acadiana once more. The Legislature continued this
trend after the 2010 census. The electoral map enacted in
201144 likewise split Acadiana into four districts:

44. Act 2, H.B. 6 (2011) (same).

 128a

Appendix A

If the majority’s formulation is correct, then none

of these maps, including H.B. 1 (depicted below),45 had
adequately accounted for Louisiana’s diverse cultural
landscape in any meaningful way.

45. Act 5, H.B. 1 (2022) (dividing Acadiana into four single-

member congressional districts).
 129a

Appendix A

Thus, dating back decades, it is safe to say Acadiana

has been a community that is “not unaccustomed to
splitting” in order to achieve a variety of other goals in
Congressional reapportionment. Cf. Theriot, 185 F.3d
at 483; Theriot v. Par. of Jefferson, 966 F. Supp. 1435,
1444 (E.D. La. 1997). For this reason, S.B. 8’s division of
Acadiana cannot persuasively be interpreted to prove that
race predominated in its drafting. See H.B. 1, Act 5 (2022)
(dividing the Acadiana region into four Congressional
districts); H.B. 6, Act 2 (2011) (doing the same). Absent
from the majority’s analysis is discussion of precedent
making clear that an electoral map that splits a community
 130a

Appendix A

of interest is not strong evidence of racial predominance if

the community is accustomed to being split into multiple
districts. Cf. Theriot, 185 F.3d at 485. Furthermore, the
legislative record in this case shows that the Legislature
considered a number of other communities of interest
and apportioned them appropriately into single-member
districts.46

Here is what the record demonstrates as to the

communities of interest factor. In testimony before
the House and Governmental A ffairs Committee,
Senator Womack and numerous other members of the
Louisiana House of Representatives noted that District
6 in S.B. 8 contained numerous communities of interest.
Representative Larvadain of Rapides Parish noted that
District 6 respected regional education and employment
interests, noting that Rapides area residents lie within
a “community of interest with Natchitoches and Caddo”
parishes. JE 31 at 21. He further noted that residents
of Point Coupee Parish in District 6, which lies almost
midway between Opelousas and Baton Rouge, utilize
health systems services and hospitals in Saint Landry
Parish’s more densely populated seat of Opelousas. JE
31 at 21-22. As another note, S.B. 8’s District 4 contains
the two major military bases in the state under the
watch of the most powerful member of the U.S. House of
Representatives, Speaker Johnson. Trial Tr. 384 (noting
that assets like military bases, along with colleges or
universities are information that legislators and electoral
demographers consider as communities of interest).

46. See also supra notes 21-26.

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Appendix A

The majority does not grapple with any of this.

Instead, it clings tightly to Mr. Hefner’s dot density
map and testimony on the contours of the district’s lines
in certain areas instead of truly examining whether
Plaintiffs had disentangled politics and race to prove
that the latter drove District 6’s lines. See Cromartie I,
526 U.S. at 546; Theriot, 185 F.3d at 486 (“Our review
of the record leads us to conclude that the inclusion or
exclusion of communities was inexorably tied to issues
of incumbency.”). Thus, the majority cannot convincingly
hold that Plaintiffs have met their burden of debunking
the State’s “political motivation” defense.

III. Strict Scrutiny

In my view, the panel majority adopts an incomplete

interpretation of the legislative record and inconsistent
circumstantial evidence to hold that S.B. 8 constitutes a
racial gerrymander. Following that determination, the
panel majority asserts that S.B. 8 fails strict scrutiny.
Notwithstanding my writings above that demonstrate
that S.B. 8 does not constitute an impermissible racial
gerrymander, I now explain how the majority’s second
major determination also lacks a substantial basis in the
record.

A. Compliance with the VRA is a Compelling State

Interest

To survive an equal protection challenge to an election

redistricting plan which considers race as a factor, the
state must show that its redistricting plan was enacted
 132a

Appendix A

in pursuit of a compelling state interest and that the

plan’s boundaries are narrowly tailored to achieve that
compelling interest. See Vera, 517 U.S. at 958-59. In my
view, it is clear that the State has satisfied its burden in
demonstrating that District 6’s boundaries in S.B. 8 were
created pursuant to a compelling state interest and were
narrowly tailored to achieve that interest.

It is axiomatic that “compliance with § 2 of the

Voting Rights Act constitutes a compelling governmental
interest.” See Clark v. Calhoun Cnty., 88 F.3d 1393, 1405
(5th Cir. 1996); Cooper, 581 U.S. at 301. Furthermore, the
Supreme Court has consistently made clear that “a State
indisputably has a compelling interest in preserving the
integrity of its election process.” Brnovich v. Dem. Nat’l
Comm., 141 S. Ct. 2321, 2347, 210 L. Ed. 2d 753 (2021)
(quoting Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S. Ct. 5,
166 L. Ed. 2d 1 (2006) (per curiam) (internal quotation
marks omitted)).

In the face of this, Plaintiffs argue that compliance

with the VRA is not a compelling governmental interest
based on this record. Plaintiffs categorize the State’s
decision to settle the Robinson matter by calling a special
session to draw new maps as “pretrial court-watching”
insufficient to constitute “a compelling interest to justify
race-based line drawing.” Plaintiffs’ Br. 14. They contend
that the State’s reliance on the VRA is based on the
Attorney General’s “calculated guess” on how the Middle
District would rule, rather than an independent analysis
of H.B. 1’s performance under the VRA. Plaintiffs point
to the Attorney General’s responses to questioning during
 133a

Appendix A

an information session before the 2024 Legislative Session

formally opened in the morning hours of January 16, 2024,
to support the theory that the Legislature did not truly
consider VRA compliance in deciding to promulgate S.B.
8. Plaintiffs’ Br. 15. Alternatively, they assert that the
VRA is merely a “post-hoc justification[]” offered by the
State to avoid liability. See Bethune-Hill, 580 U.S. at 190.

None of these arguments are persuasive. The State

has pointed to a compelling state interest recognized by
binding Supreme Court precedent. See Cooper, 581 U.S.
at 292, 301; Shaw II, 517 U.S. at 915. I now proceed to
address narrow tailoring as the State has sufficiently
established a strong basis in evidence underlying its
redistricting decisions.

B. Strong Basis In Evidence

The State argues that it had good reasons to believe

that it had to draw a majority-minority district to avoid
liability for vote dilution under § 2 of the VRA. See Ala.
Legis. Black Caucus v. Alabama, 575 U.S. 254, 278, 135 S.
Ct. 1257, 191 L. Ed. 2d 314 (2015) (holding that legislators
“may have a strong basis in evidence to use racial
classifications in order to comply with a statute when they
have good reasons to believe such use is required, even
if a court does not find that the actions were necessary
for statutory compliance”); Cooper, 581 U.S. at 287 (“If
a State has good reason to think that all three of these
[Gingles] conditions are met, then so too it has good reason
to believe that § 2 requires drawing a majority-minority
district. But if not, then not.”). Moreover, the Court has
 134a

Appendix A

emphasized that as part of the strict scrutiny inquiry

“a court’s analysis of the narrow tailoring requirement
insists only that the legislature have a ‘strong basis in
evidence’ in support of the (race-based) choice that it
has made.” Ala. Legis. Black Caucus, 575 U.S. at 278.
In essence, the Court has indicated that the State must
establish a strong basis in evidence for concluding that the
threshold Gingles conditions for § 2 liability are present,
namely:

First, “that [the minority group] is sufficiently

large and geographically compact to constitute
a majority in a single member district”; second,
“that it is politically cohesive”; and third, “that
the white majority votes sufficiently as a bloc
to enable it . . . usually to defeat the minority’s
preferred candidate.”

Vera, 517 U.S. at 978 (quoting Thornburg v. Gingles, 478

U.S. 30, 50-51, 106 S. Ct. 2752, 92 L. Ed. 2d 25, (1986))
(internal citation omitted).

The majority errs in asserting that the State has not

met its burden here. See Majority Op. at 51. Markedly, the
majority has incorrectly articulated the State’s burden as
requiring it to show that the contested district, District 6,
satisfies the first Gingles factor. The Supreme Court has
already directed that the first Gingles condition “refers to
the compactness of the minority population [in the state],
not to the compactness of the contested district.” League
of United Latin Am. Citizens v. Perry, 548 U.S. 399,
433, 126 S. Ct. 2594, 165 L. Ed. 2d 609 (2006) (“LULAC”)
 135a

Appendix A

(quoting Vera, 517 U.S. at 997 (Kennedy, J., concurring))).

As such, the State’s actual burden is to show that the first
Gingles condition—the Black population is sufficiently
large and geographically compact to constitute a majority
in a single-member district—is present so as to establish
that it had a strong basis in evidence for concluding that its
remedial action to draw a new map was required. Cooper,
581 U.S. at 287; Vera, 517 U.S. at 978. “If a State has good
reason to think that all the Gingles preconditions are met,
then so too it has good reason to believe that § 2 requires
drawing a majority-minority district.” Cooper, 581 U.S.
at 302 (internal quotation marks omitted).

The Black population’s numerosity and reasonable

compactness within the state must first be established
as required by Gingles. Cooper, 581 U.S. at 301; Allen
v. Milligan, 599 U.S. 1, 19, 143 S. Ct. 1487, 216 L. Ed.
2d 60 (2023). To satisfy the first Gingles precondition,
plaintiffs often submit illustrative maps to establish
reasonable compactness for purposes of the first Gingles
requirement. Milligan, 599 U.S. at 33 (“Plaintiffs adduced
at least one illustrative map that comported with our
precedents. They were required to do no more to satisfy
the first step of Gingles.”). As such, courts evaluate
whether the illustrative plans demonstrate reasonable
compactness when viewed through the lens of “traditional
districting principles such as maintaining communities of
interest and traditional boundaries.” LULAC, 548 U.S. at
433 (internal quotation marks omitted). With respect to
the first Gingles precondition, in Robinson I, the Middle
District of Louisiana found both (1) that Black voters could
constitute a majority in a second district in Louisiana and
 136a

Appendix A

(2) that a second district could be reasonably configured

in the state. Robinson I, 605 F. Supp. 3d at 820-31; see
Milligan, 599 U.S. at 19. Following Milligan’s lead, the
Robinson I court analyzed example districting maps
that Louisiana could enact—each of which contained two
majority-Black districts that comported with traditional
districting criteria—to conclude that a second majority-
minority district could be formulated from Louisiana’s
demographics. Robinson I, 605 F. Supp. 3d at 822-31; see
Milligan, 599 U.S. at 20.

Because the Middle District of Louisiana had

thoroughly conducted a Gingles analysis, the State had
good reasons to believe (1) that the Gingles threshold
conditions for § 2 liability were all present and (2)
that it was conceivable to draw two majority-minority
congressional districts that satisfy the first prong of
Gingles while adhering to traditional redistricting
principles. The Robinson I court’s thorough analysis that
the plaintiffs were substantially likely to prevail on the
merits of their §2 claim provided powerful evidence and
analysis supporting the State’s strong basis in evidence
claim that the VRA requires two majority-Black districts.
Cf. Wisconsin Legis. v. Wis. Elections Comm’n, 595 U.S.
398, 403, 142 S. Ct. 1245, 212 L. Ed. 2d 251 (2022) (holding
that the Governor failed to carry his burden because he
“provided almost no other evidence or analysis supporting
his claim that the VRA required the seven majority-
black districts that he drew”). The majority points to no
precedent requiring the State to reestablish or embark
on an independent inquiry regarding the numerosity and
reasonable compactness of Louisiana’s Black population
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Appendix A

after an Article III judge has already carefully evaluated

that evidence in a preliminary injunction proceeding.
Id. at 410 (Sotomayor, J., dissenting) (“The Court
points to no precedent requiring a court conducting a
malapportionment analysis to embark on an independent
inquiry into matters that the parties have conceded or not
contested, like the Gingles preconditions here.”).

Notably, both the majority and the Robinson I court

would agree that where the record reflects that the
Black population is dispersed then § 2 does not require
a majority-minority district. Compare 605 F. Supp. 3d at
826 (“If the minority population is too dispersed to create
a reasonably configured majority-minority district, [§ 2]
does not require such a district.”) (internal citation and
quotation marks omitted), with Majority Op. at 51 (“The
record reflects that, outside of southeast Louisiana, the
Black population is dispersed.”). But it was the Robinson
I court that was provided with an extensive record—
particularly extensive for a preliminary injunction
proceeding—regarding the numerosity and geographic
compactness of Louisiana’s Black population. And this
court should not deconstruct or revise that finding. Despite
the majority’s suggestion that the “[instant] record reflects
that, outside of southeast Louisiana, the Black population
is dispersed,” this record makes no such certitude. See
Majority Op. at 51.

Likewise, the Supreme Court has been clear that

compactness in the equal protection context, “which
concerns the shape or boundaries of a district, differs
from § 2 compactness, which concerns a minority group’s
 138a

Appendix A

compactness.” LULAC, 548 U.S. at 433 (quoting Abrams

v. Johnson, 521 U.S. 74, 111, 117 S. Ct. 1925, 138 L. Ed. 2d
285 (1997)). “In the equal protection context, compactness
focuses on the contours of district lines to determine
whether race was the predominant factor in drawing those
lines.” Id. (citing Miller, 515 U.S. at 916-17). The inquiry
under § 2 is whether “the minority group is geographically
compact.” Id. (quoting Shaw II, 517 U.S. at 916) (internal
quotation marks omitted).

The instant case is about an asserted equal protection

violation. The fully developed trial record substantiates
District 6’s compactness as it relates to traditional
redistricting factors. Conversely, Robinson I and its
associated record are about a vote dilution violation.
In essence, the record in Robinson I is replete with
evidence concerning the inquiry under § 2 into whether
the minority group is geographically compact. Robinson
I, 605 F. Supp. 3d at 826. The Robinson I court correctly
determined that “[t]he relevant question is whether the
population is sufficiently compact to make up a second
majority-minority congressional district in a certain
area of the state.” Robinson I, 605 F. Supp. 3d at 826.
And that is the determination that the Middle District
of Louisiana made. Equipped with expert testimony
regarding the numerosity and reasonable compactness of
the Black population in Louisiana, the Robinson I court
made a finding that the “Black population in Louisiana is
heterogeneously distributed.” 605 F. Supp. 3d at 826. In
Robinson I, the court determined that “[p]laintiffs have
demonstrated that they are substantially likely to prove
that Black voters are sufficiently ‘geographically compact’
 139a

Appendix A

to constitute a majority in a second congressional district.”

Robinson I, 605 F. Supp. 3d at 822. It would be unreasoned
and inappropriate for this court—without the benefit of a
record relevant to vote dilution—to now post hoc suggest
that Black voters are not sufficiently “geographically
compact” and thus overrule the Robinson I court’s finding.

After determining that the previously enacted

redistricting plan, H.B. 1, likely violated § 2, the Middle
District of Louisiana did not impose a particular map or
course of action on the State. Id. at 857 (“The State . . . is
not required to [use one of plaintiffs’ illustrative plans],
nor must it ‘draw the precise compact district that a court
would impose in a successful § 2 challenge.’”). Rather,
the Robinson I court highlighted that the State retained
“broad discretion in drawing districts to comply with the
mandate of § 2.” Id. (quoting Shaw II, 517 U.S. at 917 n.9).
It emphasized the State’s numerous options for a path
forward, namely that the State could “elect to use one of
Plaintiffs’ illustrative plans” or “adopt its own remedial
map.” The State chose the latter. At the same time, the
Robinson I court cautioned the State to respect its own
traditional districting principles and to remain cognizant
of the reasonableness of its fears and efforts to avoid § 2
liability. Id. (quoting Vera, 517 U.S. at 978).

Although District 6 was not present in any of the

illustrative maps submitted to satisfy the first Gingles
factor in Robinson I, the State has shown that as a
remedial plan District 6 is reasonably compact when
viewed through the lens of “traditional districting
principles such as maintaining communities of interest and
 140a

Appendix A

traditional boundaries.” LULAC, 548 U.S. at 433 (internal

quotation marks omitted).47 Recall that a Ҥ 2 district that
is reasonably compact and regular, taking into account
traditional districting principles such as maintaining
communities of interest and traditional boundaries, may
pass strict scrutiny without having to defeat rival compact
districts designed by plaintiffs’ experts in endless beauty
contests.” Vera, 517 U.S. at 977.

Make no mistake—the “special session [called by

Governor Landry] was convened as a direct result of []
litigation, Robinson v. Landry.” JE36 at 6. Certainly, some
state legislators colloquially characterized the genesis of
the special session by expressing that “we’ve been ordered
by the court that we draw congressional district with
two minority districts.” JE36 at 4 (Sen. Ed Price). But,
while some state legislators conversationally expressed
that “we are now in 2024 trying to resolve this matter at
the direction of the court,” all legislators formally and
collectively understood the redistricting process to have
begun in the fall of 2021 “where [the Legislature] began
[the] process going to every corner of this state on the
roadshow, northeast, northwest, southeast, southwest,
central Louisiana, all throughout this state.” JE36 at 4
(Sen. Royce Duplessis). Most of these senators—with the
exception of two newly elected senators—were involved
in the redistricting process when it began more than two
years before the January 2024 special session, in the fall
of 2021. Trial Tr. 545 (noting that except for only two
newly-elected state senators to the 2024 Legislature,

47. See supra Part II.A-B.

 141a

Appendix A

“the rest of the Senate serv[ed] for the full duration of the
redistricting process following the 2020 census”).

As mentioned above, the testimony and evidence show

that the legislators gave careful thought when identifying
and assessing communities of interest; strategizing
incumbency protection; calculating how often maps split
parishes, census places (or municipalities), and landmarks,
and measuring and comparing compactness scores.
Although the impetus for the special session was litigation,
the record confirms that the legislators considered
traditional redistricting criteria in drawing and amending
the maps. During the January 2024 special session, the
legislators continuously cited “redistricting criteria,
including those embodied in the Legislature’s Joint
Rule 21” as foremost in their minds while promulgating,
drafting, and voting on S.B. 8. 48 As discussed, the
record illustrates that the legislators balanced all the
relevant principles, including those described in Joint
Rule 21, without letting any single factor dominate their
redistricting process.

48. Moreover, Patricia Lowrey-Dufour, Senior Legislative

Analyst to the House and Governmental Affairs Committee,
presented an oral “101” orientation about the redistricting process.
Specifically, she provided an overview of redistricting terms,
concepts, and law, redistricting criteria, the 2020 census population
and population trends, malapportionment statistics, and illustrative
maps. Moreover, Ms. Lowrey-Dufour directed legislators to “a
plethora of resources available on the redistricting website of the
legislature.” In other words, the confection of these redistricting
plans did not occur in a vacuum. S.B. 8 was adopted as part of a
process that began with the decennial and in which legislators were
immensely informed of their duties and responsibilities. JE28 at 3-11.
 142a

Appendix A

To further imprint that the State had a strong basis

in evidence for finding that the Gingles preconditions for
§ 2 liability were present, I examine the remainder of
the Gingles factors. See Vera, 517 U.S. at 978. Louisiana
electoral history provided evidence to support the
remaining Gingles prerequisites. The second Gingles
factor asks whether Black voters are “politically cohesive.”
The court determines whether Black voters usually
support the same candidate in elections irrespective of
the contested district. The third Gingles factor requires
an inquiry into whether White voters in Louisiana vote
“sufficiently as a bloc to usually defeat [Black voters’]
preferred candidate.” Again, the court makes this
determination unrelatedly of the contested district.
Relying on a record that established racially polarized
voting patterns in the state of Louisiana, the State had a
strong basis in evidence for finding that the second and
third Gingles factors were present.

Further, the Middle District of Louisiana court

analyzed “the Senate Factors . . . and then turned to
the proportionality issue.” Robinson I, 605 F. Supp. at
844. By evaluating the Senate Factors,49 the Robinson
I court determined that the plaintiffs had “established
that they are substantially likely to prevail in showing
that the totality of the circumstances weighs in their
favor.” 605 F. Supp. at 844-51. Lastly, when evaluating the

49. The Senate Report of the Senate Judiciary Committee—

which accompanied the 1982 amendments to the VRA—specifies
factors (“Senate Factors”) that are typically relevant to a § 2 claim
and elaborate on the proof required to establish § 2 violations. See
Gingles, 478 U.S. at 43-44.
 143a

Appendix A

proportionality factor, the Middle District of Louisiana

concluded that the “Black representation under the
enacted plan is not proportional to the Black share of
population in Louisiana . . . Although Black Louisianans
make up 33.13% of the total population and 31.25% of
the voting age population, they comprise a majority in
only 17% of Louisiana’s congressional districts.” Id. at
851. Thus, each of the three Gingles prerequisites was
sufficiently established.

In sum, not only did the State have a strong basis

in evidence for believing that it needed a majority-
minority district in order to avoid liability under § 2
but—in drafting the remedial plan—it also ensured
that its proposed redistricting plan met the traditional
redistricting criteria and was geographically compact
so as to not offend the VRA. See Shaw II, 517 U.S. at
916-17 (rejecting the argument that “once a legislature
has a strong basis in evidence for concluding that a § 2
violation exists in the State, it may draw a majority-
minority district anywhere, even if the district is in no
way coincident with the compact Gingles district”). Thus,
District 6, as drawn, is “narrowly tailored.”

Shaw II recognizes that: (1) the State may not draw

a majorityminority district “anywhere [in the state] if
there is a strong basis in evidence for concluding that
a § 2 violation exists somewhere in the State and (2)
“once a violation of the statute is shown[,] States retain
broad discretion in drawing districts to comply with the
mandate of § 2.” Shaw II, 517 U.S. at 901, 917 n.9. Citing
Shaw II, the Robinson I court made no determination
 144a

Appendix A

that a district should be drawn just anywhere in the

state. 605 F. Supp. 3d at 857-58. Nor did the State seek
to embark on such an endeavor. Rather, the Robinson I
court afforded the State “a reasonable opportunity for the
legislature to meet [applicable federal legal] requirements
by adopting a substitute measure rather than for the
federal court to devise and order into effect its own plan.”
Wise v. Lipscomb, 437 U.S. 535, 540, 98 S. Ct. 2493, 57
L. Ed. 2d 411 (1978) (citing Burns v. Richardson, 384
U.S. 73, 85, 86 S. Ct. 1286, 16 L. Ed. 2d 376 (1966)).
Because the Supreme Court has emphasized “[t]ime and
again” that “reapportionment is primarily the duty and
responsibility of the State through its legislature or other
body, rather than of a federal court,” this three-judge
panel should not usurp the State’s efforts to narrowly
tailor its reapportionment scheme. See Voinovich v.
Quilter, 507 U.S. 146, 156, 113 S. Ct. 1149, 122 L. Ed. 2d
500 (1993). Under the Burns rule, “a State’s freedom of
choice to devise substitutes [or remedial plans] for an
apportionment plan [that was] found unconstitutional . . .
should not be restricted beyond the clear commands of the
Equal Protection Clause.” Lipscomb, 437 U.S. at 536-37;
Burns, 384 U.S. at 85.

Far from a map “drawn anywhere” in the state simply

because “there is a strong basis in evidence for concluding
that a § 2 violation exists somewhere in the State,” District
6 reasonably remedies potential § 2 violations because (1)
the Black population was shown to be “geographically
compact” to establish § 2 liability, Gingles, 478 U.S. at 50,
and (2) District 6 complies with “traditional districting
principles such as compactness, contiguity, and respect for
 145a

Appendix A

political subdivisions,” See Miller, 515 U.S. at 919. Shaw

II, 517 U.S. at 900. For the foregoing reasons, I would
hold that because S.B. 8 is narrowly tailored to further
the State’s compelling interests in complying with § 2
of the VRA, it survives strict scrutiny and is therefore
constitutional.

IV. Conclusion

The panel’s mandate in this case was clear: Plaintiffs

needed to prove by a preponderance of the evidence that
race predominated in the drawing of the district lines
found in S.B. 8. The panel majority, relying on decades-old
case law with antiquated observations, and by giving undue
disproportionate weight to the testimonies of Plaintiffs’
witnesses, concluded that Plaintiffs met their burden.
Respectfully, my assessment of the evidence adduced at
trial and my complete review of the entire record in this
case convinces me that Plaintiffs failed to disentangle the
State’s political defense from the consideration of race in
the formulation of S.B. 8. Not only is the panel majority’s
decision particularly jarring here, but it also creates
an untenable dilemma for the State and eviscerates the
semblance of its sovereign prerogative to draw maps.

The Louisiana Legislature conducted roadshows, held

floor debates, had the author of the bill and numerous
legislators explicitly state the political impetus for their
efforts, and drafted several maps and amendments before
finally passing S.B. 8. If, after all of that, the majority still
found that race predominated in drawing District 6, are
we not essentially telling the State that it is incapable of
 146a

Appendix A

doing the job it is tasked with under the United States and
Louisiana constitutions? While the panel majority states
that this court does not decide “whether it is feasible to
create a second majority-Black district in Louisiana,”
the context underlying this case in conjunction with its
holding functionally answers that question. Majority
Op. 58. I worry that the panel majority’s decision fails
to properly assess the history that led to S.B. 8 and,
consequently, dooms us to repeat this cycle. For the
foregoing reasons, I would determine that Plaintiffs have
failed to meet their burden showing racial predominance
in the drafting of S.B. 8. Alternatively, I would hold that
S.B. 8 is constitutional because it is narrowly tailored to
further the State’s compelling interests in complying with
§ 2 of the VRA.
 147a

Appendix
APPENDIX B — THE STATE B OF LOUISIANA’S
AND SECRETARY OF STATE’S AMENDED
NOTICE OF APPEAL, FILED MAY 7, 2024

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA—
MONROE DIVISION

Case No. 3:24-cv-00122

PHILLIP CALLAIS, LLOYD PRICE,

BRUCE ODELL, ELIZABETH ERSOFF,
ALBERT CAISSIE, DANIEL WEIR,
JOYCE LACOUR, CANDY CARROLL PEAVY,
TANYA WHITNEY, MIKE JOHNSON, GROVER
JOSEPH REES, ROLFE MCCOLLISTER,

Plaintiffs,

v.

NANCY LANDRY, IN HER OFFICIAL CAPACITY

AS LOUISIANA SECRETARY OF STATE,

Defendant.

THE STATE OF LOUISIANA’S AND SECRETARY

OF STATE’S AMENDED NOTICE OF APPEAL

Notice is hereby given that the State of Louisiana, by

and through Elizabeth Murrill, the Attorney General of
Louisiana, and Nancy Landry, in her official capacity as
Louisiana Secretary of State, hereby appeal this Court’s
April 30, 2024 order granting a preliminary injunction,
 148a

Appendix B

ECF No. 198, as well as orders relating to that injunction

(including ECF No. 219), to the United States Supreme
Court. This appeal is taken pursuant to 28 U.S.C. § 1253.

Respectfully submitted,

Dated: May 7, 2024

/s/ Phillip J. Strach

Phillip J. Strach*
Lead Counsel
Thomas A. Farr*
John E. Branch, III*
Alyssa M. Riggins*
Cassie A. Holt*
NELSON MULLINS RILEY &
SCARBOROUGH LLP
301 Hillsborough Street, Suite 1400
Raleigh, North Carolina 27603
Ph: (919) 329-3800
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
 149a

Appendix B

/s/ John C. Walsh

John C. Walsh, (LSBA No. 24903)
John C. Conine, Jr., (LSBA No. 36834)
SHOWS, CALL & WALSH, L.L.P.
628 St. Louis St. (70802)
P.O. Box 4425
Baton Rouge, LA 70821
Ph: (225) 346-1461
Fax: (225) 346-1467
[email protected]
[email protected]

Counsel for Defendant NANCY

LANDRY, in her official capacity as
Secretary of State of Louisiana

Respectfully submitted,

/s/ Morgan Brungard

Morgan Brungard (LSBA No. 40298)
Deputy Solicitor General

Carey Tom Jones (LSBA No. 07474)

Office of the Attorney General
Louisiana Department of Justice
1885 N. Third St.
Baton Rouge, LA 70804
(225) 326-6000 phone
(225) 326-6098 fax
[email protected]
[email protected]
 150a

Appendix B

Jason B. Torchinsky (DC No. 976033)*

Holtzman Vogel Baran
Torchinsky & Josefiak, PLLC
2300 N Street, NW
Suite 643A
Washington, DC 20037
Tel: 202-737-8808
Email: [email protected]

Phillip M. Gordon (VA No. 95621)*

Zachary D. Henson (NY No. 5907340)*
Holtzman Vogel Baran
Torchinsky & Josefiak, PLLC
15405 John Marshall Hwy.
Haymarket, VA 20169
Telephone: (540) 341-8808
Facsimile: (540) 341-8809
Email: [email protected]
[email protected]

Drew C. Ensign (DC No. 976571)*

Brennan A.R. Bowen (AZ No. 036639)*
Holtzman Vogel Baran
Torchinsky & Josefiak, PLLC
2575 East Camelback Rd, Ste 860
Phoenix, AZ 85016
602-388-1262
Email: [email protected]
[email protected]

*admitted pro hac vice

Counsel for Intervenor-Defendant State of Louisiana