Louisiana v. Callais

We will hear argument first this morning in Case 24-109, Louisiana versus Callais, and the consolidated case. Mr. Aguiñaga. ORAL ARGUMENT OF J. BENJAMIN AGUIÑAGA ON BEHALF OF THE APPELLANT IN CASE 24-109 MR. AGUIÑAGA: Thank you, Mr. Chief Justice, and may it please the Court: Louisiana would rather not be here. We didn't want to be in the emergency docket in 2022. We didn't want to be on the emergency docket in 2024. And today, I mean, God bless my friends on both sides of this case, but we would rather not be caught between two parties with diametrically opposed visions of what our congressional map should look like. But this has become life as usual for the states under this Court's voting cases. And our fundamental question today is: How do we get out of this predicament? Now, I think there are at least three ways to do that. First, you should reverse on standing grounds Official because the only theory of harm in the red brief is that our Black representative of District will play into racial stereotypes by favoring the Black voters of District 6. Second, you should reverse on racial predominance, because the district court wrongly assumed that our intentional creation of a majority Black district in light of the Robinson decisions automatically established racial predominance. And, third, you should reverse on the "good reasons" inquiry, because the district court wrongly, in our view, believed that the Robinson decisions played no role in the "strong basis in evidence" inquiry. And in the end, I want to emphasize that the larger picture here is important, because in an election year, we faced the prospect of a federal court drawn map that placed in jeopardy the Speaker of the House, the House majority leader, and our representative on the Appropriations Committee. And so in light of those facts, we made the politically rational decision. We drew our own map to protect them. This Court's Official breathing room precedence allowed that decision. I welcome the Court's questions.

So as I understand your argument, you accept -- we are to accept that the court, the Robinson court, required that there be two districts and that your only interest is in preserving two incumbents in northeast Louisiana? MR. AGUIÑAGA: That's correct, Your Honor. I mean, we have two Article III court decisions that say the VRA likely requires Louisiana to draw a second majority Black district. Those were the facts presented to us. In light of those decisions, we said, well, we can't allow the federal court to draw the Robinson illustrative maps because that would have placed Julia Letlow in a majority Democrat district. And so we took matters into our own hands and said we're going to protect our most high profile incumbents, draw our own map that ensures that Speaker Johnson and Representative Letlow remain in Congress. And in --

So, in order for us to -- for -- to -- to use that line, wouldn't we Official have to accept that the district court was right, the Robinson court was correct? MR. AGUIÑAGA: Your Honor, I think the way this case has been litigated, the way it comes to the Court, the plaintiffs have not put on a pseudo-VRA case to say that the Robinson courts were wrongly decided. I mean, of course, as you know, in the Robinson litigation we took the position that we should have prevailed. We lost. We lost on those arguments. And at the end of the day, I think in the strict scrutiny analysis that this Court's cases set out, the question is, do we have a good reason in relying on what the federal courts told us that the VRA likely required? And I think that's the fundamental error. If you look at pages 53a to 66a of our JS appendix, that's the district court's good reasons analysis. It says not one word about the Robinson decisions. And with all due -- with all respect to the district court, I think that's not how the good reasons inquiry runs. I mean, I think, fundamentally, when you have Article III courts telling you that this is what the VRA likely requires, a rational Official state is going to run with exactly what the federal court says. We're in the business of complying with federal court decisions. And when they told us that we needed to draw a second majority Black district, that's what we did. And I want to go back to the larger context because I think that's the important factual backdrop here, which is we're in an election year. It's 2024. The Fifth Circuit, if you look at page 601 of its decision, the Fifth Circuit says you have a few weeks to -- now that we have affirmed the district court's likelihood of success on the merits finally -- finding, you have two weeks, a few weeks to go back, consider drawing your own map. And it's an election year. We're talking about the Speaker of the House. No rational state gambles with those high-stakes seats in that situation. And our request to this Court is to say, well, given that unique circumstance where you have two layers of Article III courts telling a state what the VRA likely requires, that is a good reason for the district -- for Official the -- for the state to do what it did.

Well, I mean, do -- do you think the Robinson court was correct? MR. AGUIÑAGA: Your Honor, you know, in our heart of hearts, we've never shied away from our position in the Robinson decisions, which is that we should have prevailed. At the end of that litigation, in the preliminary injunction stage, we lost. And so we faced a choice. Do we take a gamble and go to trial, lose at final judgment, endure a court-drawn map, and hope that an appellate court will then step in on the back end of the process and save us from the federal court drawn map? Or do we say, if the courts said what they said, what the VRA likely requires, can we work with that and find a way to save our incumbents on our own? And so, Your Honor, I -- you know, I -- I'm not going to stand here and say that the Robinson courts were right, but I will say that what is set in stone is what they've said. That is the law. And we took that as gospel and went back to the drawing board and drew District Official 6.

One -- one of the arguments that the Appellees raise is that there's a durational limit on the authority of Section to -- for states to create additional majority-minority districts. I think that's pages 36 to 38 of the Appellees' brief. I know that the State of Louisiana in separate litigation is taking exactly that same position, as I understood it and read it. And I'm wondering what you think we should do with the Appellees' argument about the durational limit here. MR. AGUIÑAGA: Sure. A couple of things, Justice Kavanaugh. The first thing I think you do is you disregard it because, until the red brief, plaintiffs in this case never disputed this Court's assumption that compliance with the VRA is a compelling interest. So I think that part of the brief where they talked about what we're arguing in another case, that's really beside the point here because they forfeited that compelling interest argument. But on the merits, absolutely. In the Official Nairne case, our position is that in Louisiana, at least as applied to Louisiana, Section is unconstitutional. The reality today is we have lost that argument so far, and, you know, we are duty-bound to comply with the VRA, and especially in this context where you have federal court decisions telling us what the VRA likely requires. I -- I don't think there's any serious argument that that is not a compelling interest, that we do not have a compelling interest in complying what the federal courts have told us.

And that separate litigation's now in the Fifth Circuit; is that correct? MR. AGUIÑAGA: It's in the Fifth Circuit in the Nairne case. The Fifth Circuit panel heard oral argument in January. That issue may well be before this Court. The ultimate unconstitutionality issue may well be before this Court this fall. But at least as things stand now, we're duty-bound to comply with the Voting Rights Act. And when a district court and a panel in the Fifth Circuit say the Voting Rights Act likely requires you to adopt a Official second majority Black district, we're going to do that, Justice Kavanaugh.

What if the Robinson decision were plainly wrong? Let's say it -- it didn't apply Gingles at all. Would you still have a good reason to follow it? MR. AGUIÑAGA: No, Justice Alito. And I think that goes to -- I know the United States withdrew its brief in this case, but I think that's the sort of unusual circumstance that provides a very, very narrow exception to our position, which is you can imagine an extreme case where the VRA courts just wildly got the law wrong, got the facts wrong, and nobody -- objective -- as an objective matter, nobody would agree that that was a circumstance where a state could reasonably rely on those decisions and make --

But what if it weren't wildly wrong? They didn't just ignore Gingles, but it's wrong. You look at it and it's wrong. They -- they misapplied something. MR. AGUIÑAGA: And, Your Honor, I think the -- the -- the less wild, the less wildly wrong the decision becomes, I think the Official harder it is for a plaintiff, like Plaintiffs in this case, to come in on the back end in an Equal Protection Clause case and say: We should just relitigate what happened in the VRA litigation all over again. And that didn't happen in this case. I mean, nothing prohibited Plaintiffs from coming to the district court and putting in all the evidence to say, like, if you actually look at what was in the record in Robinson, flat wrong, you should just relitigate what happened in the Middle District and the Fifth Circuit. They didn't do that. I think that option is available --

All right. MR. AGUIÑAGA: -- to plaintiffs in a future case.

I'm sorry, I -- you're saying in this case they didn't argue Robinson was wrong? MR. AGUIÑAGA: Your Honor --

They didn't put in any evidence to relitigate the Robinson issue? MR. AGUIÑAGA: Justice Sotomayor, they Official did not put on the full panoply of evidence that was in the Robinson decision.

They say you bear that burden. MR. AGUIÑAGA: Your Honor, our burden was to show that we had a good reason for enacting District 6. And our position is that you have two Article III court decisions that go through our like -- the -- the Robinson plaintiffs' likelihood of success on the merits. That itself is based on the evidentiary record in the Robinson litigation, almost 400 docket entries in the district court --

I -- MR. AGUIÑAGA: -- in the Middle District.

I'm taking a step back, okay? If they had said that Robinson was wildly wrong, they would have relitigated in front of the district court based on the very voluminous -- district court decision. It was over 150 pages, filled with the arguments on both sides, right? Official MR. AGUIÑAGA: That's exactly right, Your Honor. And --

But what they came in and said, instead, was merely because you were trying to comply with Robinson, that showed you let race predominate, correct? MR. AGUIÑAGA: That's correct, Justice Sotomayor. And --

So their approach wasn't saying relitigate Robinson. They're just saying that's not a compelling state interest. MR. AGUIÑAGA: That's correct, Justice Sotomayor. And our position here is that can't be right. I mean, this Court has never seen a set of circumstances where you have federal courts telling a state: This is what the law likely requires of you. And then at court --

But we do have at least three cases that say you don't have to be right on whether you needed to comply with Title II, you just have to have a good faith basis, correct? MR. AGUIÑAGA: That's right, Your Honor. You have a case -- for example, Official you case -- you look at a case like Bush versus Vera, a case that says the state doesn't have to draw the precise compact district that a VRA court would have drawn. Or you look at a case like a Bethune-Hill that says a state doesn't have to show that it would have lost at trial but for its use of race. I mean, that's the sort of breathing room and flexibility that this Court's cases bake into the analysis.

Now, we have at least three cases that have said, unlike what the district court said here, the district court said that the reason why race predominated is because you decided to comply with Section 2. Correct? MR. AGUIÑAGA: That's correct, Your Honor.

And in at least three cases we've said that's not the starting proposition, correct? MR. AGUIÑAGA: That's correct, Your Honor.

One of them Official Bethune-Hume -- Hill. MR. AGUIÑAGA: That -- that's correct.

Okay. MR. AGUIÑAGA: This Court has said --

So but we have said that once you try to comply with Section 2, that the new map you create has to substantially address the likely Section violation? MR. AGUIÑAGA: That's correct, Your Honor.

All right. How does the map that you enacted do that? We know the Robinson map was more compact, followed more traditional criteria than the legislature's first created map, okay? So we know that that would have resolved the Section violation using traditional criteria. One of their arguments here, and one that the district court pointed to: But, wait a minute, this map's different, and it doesn't fit all the criteria. So how do we say that that follows our guidance? MR. AGUIÑAGA: Mr. Chief Justice, may I briefly answer? Official

Certainly. MR. AGUIÑAGA: So Justice Sotomayor, I think you begin with the Robinson illustrative maps as a baseline, and you ask: How closely does the state's enacted map approximate what the Robinson illustrative map looked like and did? And then if it deviates, you ask that substantially addresses question: Well, why did the state deviate? And did it deviate so much that the state's map doesn't actually substantially address the -- the baseline violation identified in Robinson? And the reason -- the answers to those questions in this case, the only reason we deviated from the Robinson illustrative map is to protect our high-profile incumbents. And then --

But both maps -- MR. AGUIÑAGA: -- the substantially --

Both maps created seven -- seven voting districts, correct? MR. AGUIÑAGA: We have six districts, correct, Your --

I'm sorry. Official MR. AGUIÑAGA: Both maps created two majority Black districts.

Two majorities. But both of them relied on the same district -- having the same number of districts? MR. AGUIÑAGA: That's correct, Your Honor.

And 70 percent of District 6's, which is -- was 70 percent of the Robinson map, correct? District 6? MR. AGUIÑAGA: That's correct, Your Honor. The very core of District is the very core of the Robinson illustrative map.

We have also said very clearly that if two reasons coexist, race and politics, that 50/50 means that race doesn't predominate, correct? MR. AGUIÑAGA: That's what this Court's precedents say, Your Honor.

Thank you, counsel. Justice Thomas? Justice Alito? Official Justice Kagan? Justice Kavanaugh?

What's the limit on that, in terms of your answer to Justice Sotomayor? You know, 50 percent? 40 percent? 30 percent? And what are -- what kind of guidance do you think we could give? Because one of the legitimate concerns of your brief and the amicus briefs are to give clearer guidance. What do you think the limit is on taking the political considerations into account in fashioning a remedial district that substantially addresses the violation? MR. AGUIÑAGA: Well, I think one of the limits, Justice Kavanaugh, is numerical, right? I mean, in Shaw the Court said that a percent overlap was insufficient. In LULAC, you know, less than -- than 50 percent was insufficient. Here, we're in the neighborhood of 70 percent. So I think as a numerical matter, that's going to be one pretty clear guidepost for the lower courts on how closely a state is approximating the illustrative map. And I think the other thing is just Official to -- to really assess why the state deviated from the baseline map. And I think that's one of the things where I don't know that there is any dispute in this case, on both sides, why we didn't adopt SB4. We adopted SB8. The sole reason in Senator Womack's own statements is SB8 was the only map that would protect our -- our high-profile incumbents.

So the rule I think you want is political considerations are fine to take into account in doing the map, the second map. And 50's kind of a floor on that? MR. AGUIÑAGA: I -- I think so. I mean, this Court has never spelled out what "substantially addresses" means as a numerical matter. And to my mind, if I'm between 60 and 80 percent, I think that's substantial. But obviously a judgment call for this Court.

I just want to be sure I understand your question to Justice Alito. Justice Alito asked you, you know, if Official the Robinson decision was patently wrong, could it still be a good reason. And you said: Well, you know, if it -- if it was patently wrong, no, but we were obeying the federal court orders. This wasn't patently wrong. What -- what is the point at which -- because it's an odd situation, right, where the later district court has to essentially take as preclusive the earlier district court's determination of the Section violation, right? But it's not entirely preclusive because you left room for the later court to say: Well, that was patently wrong, so we're not going to follow it. What is the line? MR. AGUIÑAGA: So I think there are two ways in which it's not automatically preclusive, Justice Barrett. I think the first is regardless of what the earlier court decisions say, when the state acts, it has to substantially address the -- the -- the baseline violation. So that's one way in which -- if we fail to do that, if we adopted an SB8 map that had only percent Official overlap with the Robinson illustratives, then that's one way in which the VRA decisions are not preclusive here. We lose this case. I think the other way -- and I think this is what your question was getting at -- is that in the wildly wrong case, you know, I think we just can't -- we can't dispute that there may be some case where objectively, on both sides of the aisle, everybody agrees that the court just got the law and the facts wrong. I think that's a case we have to give up. And we're happy to give it up. But barring that case, when a federal court -- two federal courts tell a state what the law requires, to me, that means that there should be a very, very high bar in this Court's precedence for second-guessing what those federal courts say. And I think you just leave that hypothetical out there as -- as a potential odd case that may never arise. But we acknowledge that, you know, it is out there.

I mean, is it also because of the position that it puts the state in here? I mean, it's not just a matter of your Official obedience to the federal court order -- which I appreciate, you know, you would be obedient to the federal court order -- but it's also that if you had continued to litigate the Robinson -- if you had continued to litigate in Robinson, you risked having the court-imposed map. And so it's really your litigation risk that's part of the calculus here? MR. AGUIÑAGA: That's one risk, Your Honor. I think it's both litigation risk and political risk. Because remember, if you look at page 601 of the Fifth Circuit's decision, they say: Now that we have affirmed the district court on the merits, we don't doubt that the legislature might want to take this opportunity to draw a new map now, and we're -- here's the deadline, January 15, 2024. You can call that litigation risk. You can call that political risk. Whatever it is, it's forcing the state to make up a call.

It's wrapped up together, yeah. MR. AGUIÑAGA: That's correct.

If you're going to lose, then you risk that the district court's Official going to impose a map on you. MR. AGUIÑAGA: That's exactly right, Justice Barrett.

So can I just clarify? There's no dispute that the court's order was the reason that Louisiana did this, did the new map, right? MR. AGUIÑAGA: Mr. Greim can correct me if I'm wrong, but I don't think so, Your Honor.

And the question is whether or not the fact that you had a court order was good enough reason for you to do it? Is that what you understand the basic question to be? MR. AGUIÑAGA: That's correct. Not just one order, but two layers of orders, yes, Your Honor.

And I guess I'm still a little confused as to why it matters whether the court order was right or not. You -- you -- you were still being compelled by Official the court to do what you did in this case, correct? MR. AGUIÑAGA: That's correct, Justice Jackson. And I guess all I was trying to -- the point I was trying to drive home is that you could imagine -- and I -- I think that's why the United States' withdrawn brief calls it an unusual circumstance, where, like, the -- like, the VRA decisions were just wrong, just plainly wrong, and nobody would rely on them. But this is nowhere close to that. And I -- you know, it may well be that this Court never sees a situation where that sort of wildly erroneous --

But I guess that hypothetical invites us to even engage in and question, you know, an inquiry as to whether or not this was a wildly wrong case. And I -- I'm just worried about that as a way of going about handling this sort of situation. I mean, Justice Barrett points out that we have a prior court order. You say, and -- and it's clear that it was affirmed by the Fifth Circuit, that to a certain extent it is preclusive on the facts of whether or not Official there's a likely VRA violation here. And having a likely VRA violation is all that was necessary for the -- the state to take the steps that it did. So I -- I just don't know that we need to even engage in the thought process of what if the court order was wrong? MR. AGUIÑAGA: Yeah. Right.

I mean, it existed. And if it existed, then it seems to me that there is a good reason for Louisiana to have followed it. MR. AGUIÑAGA: I think --

Yeah? MR. AGUIÑAGA: I think that's exactly right, Justice Jackson. And that's why that may well be the unicorn case, the unicorn case that says, you know, black is green. Like nobody, like, objectively agrees with that. But that case may also never arise. If I --

Let me ask you about substantially addressed the violation. Was that something that the district court addressed in this case? I didn't see that as part of its analysis. And isn't that another basis for Official finding error here? MR. AGUIÑAGA: It did not, Your Honor. And, yes, that is an independent legal ground for finding error. And that's why I pointed the Court to -- if you look at pages 53a to 66a of our JS appendix, that's the good reasons analysis. And you see nothing about Robinson there. You see nothing about the Robinson illustrative maps. With all due respect, that -- the -- that factual background is what explains SB8. And so you can't assess the legality of our map without referring as a baseline to the comparison against the Robinson litigation.

Thank you, counsel. Mr. Naifeh. ORAL ARGUMENT OF STUART C. NAIFEH ON BEHALF OF THE APPELLANTS IN CASE 24-

Could you take a minute or so and describe exactly what the underlying Voting Rights Act violation was?

And how it was remedied.

Counsel, what do we do about the fact that Robinson I was just litigated through a preliminary injunction? And I understand that the Court has -- has suggested that there's a compelling interest in abiding Section 2, but here we don't have a final judgment. And that's a little -- little -- little awkward to say that a -- a preliminary injunction, which even in the existing litigation, has no binding effect going forward, right? I mean, you get a PI, you can lose on Official the merits. It happens all the time. Right? So what do we do about that?

-- that, but here it's based on a -- a court action. But the court action was preliminary.

Well, it was not only a preliminary injunction. It was a preliminary injunction that was vacated by the Fifth Circuit because there was no longer any irreparable harm at the time when the Fifth Circuit decided the appeal. And the Fifth Circuit said, you know, we're not convinced that this is the right result, this will be the right result in the end. Isn't all that true?

All right. But it's a -- it's a vacated preliminary injunction.

Why is this situation different from the situation in Miller, which I don't think you discuss in your brief, where the state said we adopted this map because that was required to get preclearance from the Justice Department? And the court just blew right past that. So what's the difference?

Well, I come back, then, to the question I asked Mr. Aguiñaga. What if the underlying decision -- what if the district court decision is wrong? What if you read it and you say this is wrong, it applied Official the wrong standard?

Well -- well, why isn't this a situation where if you look at the face of the decision, it's wrong? And you just summarized what the -- what the Middle District judge held, and it was wrong under LULAC. It's wrong. The question is whether there is a minority -- whether there's a minority population that is sufficiently compact to be -- to be included in a district that sufficiently respects traditional districting lines, not whether, once you've identified a -- bits of minority population, it is possible to draw a district that's compact. That's contrary to what LULAC said. Official And it's just what the -- but that's what the Middle District said. And it's what you just said in summarizing what they held.

Right. We said that in Allen, didn't we? That was pretty recent. That was last year, two years ago, whatever?

We said it in Wisconsin legislature? Sufficiently large and compact to constitute a majority in a reasonably configured district. That's exactly what they did. I mean, LULAC has some language -- it actually goes back and forth between the two, but we have repeated now several times, including in our most recent decision, the standard that was used here.

How -- I mean, if you look at CD6, what does "reasonably compact" mean?

I mean, it's -- it's a snake that runs from one end of the state to the other. That -- I mean, how is that compact?

So in Robinson, they were looking at a totally normal-looking district, right?

It's kind of square, and it's like there's nothing unusual about it.

It actually looks like the district that the -- the -- the State went in with, right?

It performed better on traditional criteria.

The Robinson map performed better on criteria -- on traditional criteria than Louisiana's map, correct?

So what do we do about that? You came up with some compact maps. Louisiana chose a snake, as the Chief Justice called it, instead, squiggling from one end of Official the state to the other. Even if -- even if there were good reason for the district court -- for equal protection purposes, the state had good reason to draw another district, didn't it have good reason to draw this district?

No, I -- I'm spotting you that.

We're moving past the preliminary injunction stuff --

-- whether they had good reason. I'm asking: Is this one narrowly tailored? Is this one the appropriate district?

And that's my question for you.

Of the population. But geographically it's wildly different. And -- and so what do we do about that?

Yeah, but districting is supposed to take into account -- I mean, we're going to go around the tree, I suppose. But districting is also supposed to take into account compactness and -- contiguity -- sorry -- and -- and traditional districting principles. And this one -- you didn't propose this district.

And I'm wondering whether or not we're conflating the standards in -- in a way as we have this conversation. I mean, the original Section violation was established via the map that was compact, that you created, that showed that another majority-minority district could be drawn. And in response to that, the State, for political reasons, said: We're not going to adopt that map; we need to make a different one in order to reach the goal of remedying this violation because of political reasons. So at that point I'm wondering whether we are even in a world in which strict scrutiny is applying. Because the State's motivation for Official drawing the squiggly snake -- snake map is not race. Its motivation at that point is clearly politics, because that's what it's saying it's doing, choosing that map over the one that you proposed.

So do we even need to get into the -- the analysis of about narrow tailoring? Because it seems we've -- we've left it, because we're now in the world of political map drawing, right?

And -- and what I --

-- hear you saying is the reason why we're looking at a snake-like map rather than the compact map is because of political considerations. Official

Counsel, you said what's important on compactness is where the core of the district is?

And you think the drawing of this district was not predominantly based on race?

I mean, it runs from one side of the state angling up to Official the other, picking up -- Black populations as it goes along.

Well, I think what the Chief is trying to get at is certainly politics played a role in this district, but didn't race?

Which is another way of saying race predominated, isn't it?

Isn't it -- isn't it -- I'm -- I'm sorry. I'm sorry, Chief.

Well, isn't -- isn't saying race is one consideration another way of saying race predominated? And how do we square that with the Fourteenth Amendment's promise Official that race should play no role --

-- in our -- in our laws?

Thank you, counsel. Justice Thomas?

In some of these Official redistricting cases, the argument is that certain -- a certain percentage of the Black population is excluded, and you redraw the map to include that population. And what I'm interested in here is exactly what the violation was and exactly how this map solves that or addresses that violation.

Well, let me ask you a question about illustrative District that was before the Middle District of Louisiana in the Robinson case. So that district combined Black populations near Baton Rouge and Lafayette in the southeast region of the state with splotches of Black populations near Monroe, Bastrop, and Official Tallulah in the far northeast corner of the state. Now, how can the failure to combine these far-distant populations in a map in a single district be regarded as the cracking of a concentration of Black voters?

Yeah, the map -- the -- the --

The map scored well on those -- on those criteria. But how can that be regarded as cracking?

I understand that. And not only are these populations distant from each other, isn't it the case that they differ in some fundamental respects and, therefore, may not be part of the same community of interest? The -- the concentration near Baton Rouge and Lafayette are -- are people who live in an -- in urban areas. The people who are way up in the northeast part of the state are -- live in rural areas, small towns. Their values may be quite different, much more religious perhaps than the people down in the other part of the state. Isn't that true? And -- and just last one, last question, don't -- doesn't voting in the 2024 election substantiate that?

The problem I see is that Louisiana's original 2022 map does exactly what Justice Alito is saying, is joining together white voters --

-- who don't necessarily have shared interests.

That's the point, which is what you've done is tie together communities of interest in a different way, correct?

And one that complies with -- complies with Section but keeps your political needs?

Not your political needs, but Louisiana's political needs.

If I understand the questions a couple of my colleagues are asking about, it's really -- was Robinson right, not Official was the decision below right. And as to whether Robinson was right, do you think that we're well positioned in this case to address that issue?

Six different Fifth Circuit judges.

We had the opportunity to do about it at one point. We let it go. Six circuit court judges. As I understand the Respondent's argument in this case, the Respondents are not standing here -- I mean, they might think Robinson was wrong, but their brief is not premised on the idea that Robinson was wrong. Is that correct?

Yeah. And the General here was saying, you know, look, they litigated Robinson a lot. They took it to the Fifth Circuit twice. They litigated it a lot and, like at some point, you -- a state takes its loss and decides that it has to get on with things. And that's exactly what the State here did.

And that's a reasonable thing. I mean, if we're -- we say all the time states to have to have breathing room. States have to have breathing room. This state used its breathing room to say, after we litigated this and we litigated it -- this again and we knew we were going to lose because six Fifth Circuit judges had told us so, it was time to get on with things and draw our map that served our political objectives. Official

Two questions. One, a general equal protection question and then a more specific Section -- question. On equal protection law, we've, of course, said and the Court's long said, that race-based remedial action must have a logical end point, must be limited in time, must be a temporary matter. Of course, in school desegregation and university admissions. What -- how does that principle apply to Section 2?

And, second, on the specific questions here, on the race politics, I just want to disaggregate this. My understanding of your position is that the reason that there's a second majority-minority district required is because of race, because of Section 2, but the choice between which majority-minority district to use was made entirely on politics. Is that your position?

So is your understanding of breathing room -- I just want to be sure I understand your answers to Justice Kagan. Is your answer -- is your answer to Justice Kagan, your understanding of what Official breathing room allows a state to do, necessarily mean that any time there's a district court order finding a Section violation, that is reason for a Fourteenth Amendment claim to then later lose? Because compliance with Section would always be a reason for the State to draw a race-based district?

So let me follow up then on Justice Kavanaugh's question. He pointed out there's two steps here. One, you had to draw a Second District based on race, but the shape of that Second District was based on political considerations. What if that wasn't the case? What if they didn't like the one imposed by the Robinson map, your map, and said: We're going to draw a different one? But expressly said, the whole time -- didn't talk about the speaker, didn't talk about anyone else, didn't talk about politics. Just said: We're doing this because of race. We don't like that other map. Race, race, race. So the shape of it was also based on race, which is different than the other one.

So that would be an example where there wouldn't -- you couldn't just point to the earlier Section litigation as the compelling interest?

For tailoring purposes. Okay. Thank you.

Yeah -- yeah, just to follow up on Justice Barrett's point. Your -- your point is just that the previous litigation provides the compelling Official interest to good reason to go forward. But there's still always the narrow tailoring. And we're looking at what it is the State is actually doing with respect to it's remedy, right?

Has the Court ever held that race predominates whenever a state draws a district to comply with Section 2? I -- I thought we suggested the opposite in Shaw v. Reno.

And is it the plaintiffs' burden -- the plaintiffs in the equal protection case burden to disentangled race from politics in a case like this? Official

Thank you, counsel. Mr. Greim. ORAL ARGUMENT OF EDWARD D. GREIM ON BEHALF OF THE APPELLEES

Do we have to accept Robinson, which is not being -- which is not on appeal here, as a given?

I -- I'm sorry. Go ahead.

No, go ahead. No, go ahead.

They have a decision by a lower court that they're likely to succeed. They have a -- an appeal of a temporary restraining order, where that court says they're likely to win. And we have a merits panel who looks at it and says they're likely to win. They can't -- that's not enough to Official provide a good faith basis for believing that they need to comply with Section 2? That's what you're saying.

Why did they have to do that?

Meaning, what you're asking for is a relitigation of Robinson in total.

But -- but it's not whether they were right or wrong. We've said that. "Good faith" doesn't mean that you're proven -- that you had to do this. It's just whether you had a good faith basis to believe you should do it.

I mean -- well, we'll --

We'll go back to that. Thank you.

Well, counsel, can I just ask you, because some of the things that you have said makes it seem as though you're suggesting that Louisiana's pointing to the court order was pretextual. In other words, you say: If they believed that the court was ordering them. So do you have some basis for disputing what Governor Landry said: "We are here today because the federal courts have ordered us to perform our job. We have exhausted all legal remedies," and we have labored with this issue for too long, and that's why we're drawing the map? I mean, it's -- do you concede that Louisiana at least sincerely believed that the courts were requiring it to do this?

No, I understand they thought the courts were wrong. But the question is: Did they believe that a court was ordering them to do it? I mean, I -- I -- I -- I am sort of concerned about your view -- as seemingly expressed, and I want you to clarify it -- that a court order compelling you to do something is not a good reason for you to do it.

-- to the remedy. I'm -- I'm asking about the violation. We had many judges, as other justices have -- set forward, that looked at the actual merits of the question of whether or not there would be a VRA violation if a new map wasn't drawn. So Louisiana felt, I think they're saying, compelled to do something about this. And you seem to be questioning whether or not they were. And I'm just trying to clarify that.

So -- so is --

I guess I don't understand, Mr. Greim. Like, what should Louisiana have done? Louisiana litigated this case. It lost in the district court. It lost twice in the circuit court. You know, if I read the list of the judges, I'm just going to tell you that if you lose those judges, you're going to lose. (Laughter.)

We didn't -- we had no interest in taking the case. It was brought to us, we said no. What -- what was Louisiana supposed to do?

So I -- I guess I get the idea that it did have the option to keep on finding ways to litigate this question, but what -- I mean, there were -- there were ways that it could have refused to give up. I take that point. But at some point, it said, you know, we've -- we've -- we've been told we're wrong by seven judges, and we're going to accept that and we're going to move on and find a map. And then the State lawyers come in and, I mean, the -- the record is like the State lawyer says there can be no better reasons to believe that the VRA required a second majority Black district than a precedential opinion of the Fifth Circuit affirming that a map with a single majority Black district likely violated Section 2. And the State lawyer talks about all the process that they went through and all -- and hearing that they had and the maps that were submitted. And she says what better reason could there be for this? So, like, at a certain point, like, I -- I get that you -- that there might have been other options, but that's the whole point Official about breathing room, right? Breathing room is states have choices. And -- and this was one state that decided on this choice that you don't agree with, but it was, like, well, well, well within the parameters of, like, a good faith reasonable choice.

Counsel, you know, if we're going to defer to the Fifth Circuit, they also found a constitutional violation here too. So they're speaking out of all sides of all mouths down there. And I'm not sure that's how the system works anyway. But I have a question for you on Official the -- on the remedy. Your -- your friends on the other side say, okay, race predominated in -- in -- in creating a Second District, but race didn't play a role in the squiggly line district. It was politics. And -- and -- and -- I -- I want to get your response to that.

What does -- what Official does it mean to say race or politics predominate? I mean, I -- I had thought the Fourteenth Amendment said we don't look at race. "Predominate" says you can up to a point, but I don't know what that point would be. And I -- I don't know, can two things predominate? Can politics and race predominate? I don't know.

That's enough for predominance? We have a case that says that if you are drawing a second or a third or whatever Black majority district, you satisfy the racial predominance --

I'm sorry. Then there's no way to comply with Section 2.

If -- if what you're saying is you can never -- a state could never in good faith redraw a map if it believes that it's solve -- going to draw a map that is going to solve a Section violation. That's what you're saying.

It's a vicious cycle they can't get out of.

But that's what they've done. That's what they've done here. They've got a judge saying you violated it. There's an alternative map that meets all traditional criteria. Go draw your own map, but Official make sure you get a second out because that's the only way to remedy this violation.

And they come up with a second map or a different map that shows -- that they show is based purely on politics. They -- they wanted to save three incumbents, so they drew lines to save three incumbents.

Well, their answer to that, I think, is the 70 percent. So can you just address that?

Counsel, speaking of the record, I -- I -- I have to point to what the Appellants' point to on page of their brief -- this is the State's brief -- when they talk about Senator Womack. You've mentioned him several times. And, apparently, he was asked directly what was the predominant reason for you to create the Sixth District this way, the way it looks now, versus just going with Senator Price's bill, which created a more compact district. And he answered it was strictly Official politics. Politics drove this map because of the Speaker Johnson, Majority Meeter -- Leader Scalise, and my Congresswoman, Julia Letlow, predominantly drove this map. And he disavowed that race was the predominant factor. You've said exactly the opposite several times here. So can we just get some clarity --

-- on what Womack's position was?

Let me put it this way: If -- if Louisiana had accepted the initial Robinson map, would you have brought your litigation? Would you have been able to make the argument that this was not compact, this was some -- somehow a violation or -- what -- what would your position have been?

I guess I don't quite understand the role compactness plays in your analysis, because -- and this goes back to Justice Kavanaugh's point, that there's really sort of two steps. Official I mean, once Robinson has provided Louisiana with a good reason to think that there was a Section violation that they needed to remedy by creating another minority district, once that happened, what Louisiana did was, like, look at this map and say: Essentially we have three incumbents, and we know which two are really important for the State to keep. And they created a map that made sure that they kept the two incumbents that were most important for the State to keep. And, like, why isn't that, like, completely within the prerogative of a state? That has nothing to do -- I mean, it creates a less compact district, no doubt about that. But, you know, we've never said to states: Oh, you've got to go with compactness when the speaker of the House is going to be thrown out. I mean, it's totally within the prerogative of the State to say: Incumbent protection, and particular incumbents, are really super important to us.

No, but -- but there's, like, two steps here. One is, is there good reason to think there is a Section violation? Robinson has created the premise of thinking that there's good reason that you need to create another map. Now the question is: What does that map look like? It's the remedial question. It's the -- does the -- does the map substantially address the Section violation that you have good reason to think exists? And the State said: You know, the Plaintiffs have presented these maps that would substantially address that. We have a better map that would substantially address that, that also allows us to keep our incumbent. Better, because it allows us to keep our incumbents. I mean, what's wrong with that?

If -- if the State can't do that, the State has no breathing room.

I think this is a little bit backwards, Mr. Greim, because you only get to evaluate CD6 if we find that there was good reason to think that there was a -- a substantial likelihood of a -- a -- a -- a -- a voting rights violation. So -- so that good reason is provided by Robinson. And -- and Robinson says that there's a compact minority population whose Section rights are likely being violated. Once Robinson says that, the question, you know, only becomes whether CD6 substantially addresses that Section violation. But the compactness inquiry, which is the -- is, you know, is there a compact district Official such that Section is being violated, that happens at the first step of the analysis. And Robinson has already addressed that question.

Maybe I'm missing the thrust of the question. But the question seems to be: Is it not the case that if you grant the premise, then on the remedial -- at the remedial phase, anything goes? Now, can that possibly be correct? Suppose that the -- the -- the district that's created is not the -- the parts of the district are not even connected. You've got an island here, an island there, an island here, an island there. Would that be okay?

Mr. Greim, it is not an anything goes inquiry. We have said it has to substantially address the voting rights population. So, for example, where we -- there was a remedial district that addressed only percent of the people whose rights were Official actually violated, we, of course, struck that down. But here, the district addressed 70 percent of the people whose rights were being violated, which seems like a ways different from percent. And seems to suggest that the voting rights district was -- the voting rights violation was being substantially addressed, which is the only thing we've ever required at that point.

Your lead argument in the brief for why there was no compelling interest here in the race-based redistricting on page 36 was the durational point, the Constitution. The authority of a state to engage in race-based redistricting must have a -- an end point. You haven't mentioned that so far. The other side said that that argument has been forfeited. And I want to get your response to that. The fact that you haven't mentioned it so far certainly supports what they're saying on that, but I'll give you a chance to respond.

Thank you, counsel. Justice Thomas? Justice Alito? Justice Kavanaugh? Justice Barrett? Justice Jackson?

I just have one final question. And it's -- the Robinson map, the proposed Robinson map that had the Black district that would be one that might oust Julia Letlow, is it your position that the Black district drawn in that map was not sufficiently compact?

Thank you, counsel. Rebuttal, counsel? REBUTTAL ARGUMENT OF J. BENJAMIN AGUIÑAGA ON BEHALF OF THE APPELLANT IN CASE 24-109 MR. AGUIÑAGA: Thank you, Mr. Chief Justice. Just three brief points. First, on racial predominance. I would emphasize this Court's decision last year in Alexander, where the Court emphasized caution, that when a federal court says that race was a legislature's predominant purpose in drawing the district, it accuses that legislature of offensive and demeaning conduct. If that caution applies in the ordinary case, respectfully it should especially heightened here in a case where two Article III courts are telling a state to use race to draw a Official second majority district. So Justice Jackson, we don't think the Court needs to get to strict scrutiny because race did not predominate under Alexander. Second, on the question of strict scrutiny, my friend talks a lot about Shaw and compactness. But, respectfully, my friend ignores footnote of Shaw II. There in footnote of Shaw II, this Court said that even a plaintiff in a successful Section case does not have a right to be in the ultimate remedial district that is drawn. That's because, that footnote emphasizes, a state has broad leeway to draw that district. Respectfully, there is no holding in this Court's cases that require us to satisfy Gingles in drawing the remedial district as we did here. The third point is just one about next steps. With all due respect, we'd rather not be back at the podium this fall defending a new map against a new challenge. This Court's cases promise breathing room. We operated in that breathing room in drawing District 6. And if this Court holds otherwise, then respectfully I don't know what this Court's voting cases mean. Official We ask you to reverse. Thank you.

Thank you, counsel. The case is submitted. (Whereupon, at 11:27 a.m., the case was submitted.)