Introduction

Louisiana’s intentional creation of a second majority-minority district in S.B. 8—at the behest of a federal district judge and a Fifth Circuit panel—violates the Constitution as properly understood. That was the position Louisiana took in vigorous defense of its original congressional map: Louisiana could not constitutionally pack black voters into a plainly gerrymandered district, and a federal court could not do so either. That also is the position Louisiana is currently taking in vigorous defense of its state legislative maps: Race-based redistricting is fundamentally contrary to our Constitution.

Over and over again, the federal courts have refused to hear us. That is why S.B. 8 is on the books—Louisiana’s response to unprecedented pressure by the courts to draw a second majority-minority district or else the courts would. And that is why our original briefing in this case defends S.B. 8 under the Court’s existing precedents.

The Court’s order for rebriefing and reargument, however, asks a threshold question about those precedents: whether, consistent with Louisiana’s longstanding position, race-based redistricting is unconstitutional. It is. We thus decline to defend S.B. 8 on that question presented.

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Racial classifications “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Shaw v. Reno (Shaw I), 509 U.S. 630, 643 (1993) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). And racial classifications implicating the most sacred feature of our democracy—the right to vote—are uniquely odious. They harm voters of all races whose skin colors determine their voting districts. They harm the sovereign States that perennially suffer the indignity of discriminating against their citizens on the basis of race—and then the indignity of being sued for considering race too much or too little. They harm the federal judiciary, which must pick winners and losers based on race. And they harm our stature as a Nation—a Nation that once had the audacity to declare to the world the first truth we held to be self-evident: “[A]ll men are created equal.” Declaration of Independence ¶ 2.

That founding declaration rings hollow as long as government-mandated racial discrimination exists in America. “Eliminating racial discrimination means eliminating all of it.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (SFFA), 600 U.S. 181, 206 (2023). There is no safe harbor for racial discrimination the government deems good discrimination. The Constitution instead orders no quarter—relentless enforcement of the “dedicated belief” that our Constitution “is color blind.” Supp. Br. for Appellants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10, in Brown v. Bd. of Educ., O.T. 1953, p. 65; Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).

Race-based redistricting in the name of Section 2 of the Voting Rights Act (VRA) should be no exception. But the Court has nevertheless understood Section 2 to “insist[],” in certain (well, uncertain) circumstances, “that districts be created precisely because of race,” Abbott v. Perez, 585 U.S. 579, 586 (2018)—that is, States must use racial targets to intentionally create majority-minority voting districts.

That race-based mandate is unconstitutional. The Equal Protection Clause commands that the government “may never use race as a stereotype or negative.” SFFA, 600 U.S. at 213. Yet race-based redistricting rests on an invidious stereotype: that all minorities, by virtue of their membership in their racial class, think alike and share the same interests and voting preferences. And it uses race as a negative in this zero-sum context by advantaging some racial groups at the expense of others.

If that “were not enough,” race-based redistricting under Section 2 also “lack[s] a ‘logical end point.’” Id. at 221. It has persisted for over four decades—and its eyes are set on eternity. Just ask Washington, Louisiana, Mississippi, Alabama, and Georgia, all of which have lost their maps to Section 2’s race-based mandate in this redistricting cycle alone.

These violations of basic equal protection principles ended race-based admissions programs. They should also end race-based redistricting. For the use of race in race-based admissions programs is “[j]ust like” the “drawing [of] district lines” to create majority-minority districts under Section 2. Id. at 361 n.34 (Sotomayor, J., dissenting).

In any event, race-based redistricting under Section 2 in response to alleged vote dilution also fails strict scrutiny. Such compliance with Section 2 cannot be a compelling interest given the above constitutional faults. It also neither remedies a specific instance of past discrimination nor implicates a serious risk to human safety—the only two exceptions that “up to now have been the outermost constitutional limits of permissible” race-based action. Free Enter. Fund v. PCAOB, 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting).

More, the Court’s “notoriously unclear and confusing” vote-dilution precedents, Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays), are too “amorphous,” SFFA, 600 U.S. at 214, to sufficiently articulate a concrete compelling interest. And Section 2’s race-based mandate exceeds Congress’ Fifteenth Amendment authority because Congress did not even try to make a modern record that could survive congruence-and-proportionality review.

That race-based redistricting is unconstitutional also is true no matter how sincerely a mapmaker promises he only lightly weighted his racial targets. There is no “just a smidge of race” exception to our Constitution. “In the eyes of the Constitution, one racially discriminatory [] strike is one too many.” Flowers v. Mississippi, 588 U.S. 284, 298 (2019). So much the more for the hundreds of thousands of strikes, based on skin color, that are necessary to balance district lines in pursuit of majority-minority districts.

The upshot is that this Court’s construction of Section 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), and its progeny to require race-based redistricting is itself unconstitutional. For decades and in dozens of cases, the States and this Court have tried to make Gingles workable, coherent, predictable, and constitutional.

Some members of the Court also have proposed ways to conduct the Gingles analysis in a manner that avoids pernicious racial targets. See Allen v. Milligan, 599 U.S. 1, 64–65 (2023) (Thomas, J., dissenting); id. at 99–100 (Alito, J., dissenting). Yet here we are (again) with no clue how to simultaneously survive constitutional and VRA scrutiny. Louisiana’s experience suggests that Gingles cannot be reformed and should be overruled. But, in all events, the States desperately need clarity that so far has been absent from this Court’s redistricting cases. Absent that clarity, nothing will change in the extraordinary expenditure of time, money, and resources that the States (and the courts) face after every redistricting cycle.

With all respect, it is “remarkably wrong” for courts—or States coerced by courts—to be “pick[ing] winners and losers based on the color of their skin.” SFFA, 600 U.S. at 229–30. Our Constitution does not tolerate this abhorrent and incoherent system, and Louisiana wants no part of it. The Louisiana Legislature fought it by initially refusing to racially sort voters into a second majority-minority district in Louisiana’s 2021 map—a map whose predecessor the U.S. Department of Justice had twice precleared. When a federal district court enjoined that map and threatened to draw its own map, the Louisiana Legislature under protest drew the S.B. 8 map to create a second majority-minority district that avoided political harms to Louisiana’s high-profile incumbents. We defended that district because this Court’s current precedents permit it, and two federal courts directed it—but we have never backed away from our conviction that race-based redistricting is unconstitutional.

Our oath is to the Constitution. Our Constitution sees neither black voters nor white voters; it sees only American voters. Indeed, the “transformative promise” of the Fourteenth Amendment, id. at 205, is that “the law in the States shall be the same for the black as for the white,” Flowers, 588 U.S. at 294 (quoting Strauder v. West Virginia, 100 U.S. 303, 307 (1880)). But equal justice under law will never be equal as long as States must treat their citizens differently based on skin color. Now is the time to put this “sordid business” out of business. LULAC v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part).