During last month's Supreme Court oral arguments for Louisiana v. Callais, Justice Neil Gorsuch questioned attorney Stuart C. Naifeh on Louisiana's redistricting lines.
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NewsTranscript
00:00Isn't this a situation where if you look at the face of the decision, it's wrong?
00:04And you just summarized what the middle district judge held, and it was wrong.
00:13Under LULAC, it's wrong.
00:14The question is whether there is a minority, whether there is a minority population that
00:22is sufficiently compact to be included in a district that sufficiently respects traditional
00:31districting lines, not whether once you've identified bits of minority population, it
00:39is possible to draw a district that's compact.
00:43That's contrary to what LULAC said, but that's what the middle district said, and it's what
00:49you just said in summarizing what they held.
00:52Well, absolutely, Your Honor.
00:53The standard is, is the minority population sufficiently compact to form the majority
00:57in a reasonably configured district?
00:59We said that in Allen, didn't we?
01:01That was pretty recent.
01:02That was last year, two years ago.
01:04Absolutely, Your Honor.
01:05We said it in Wisconsin legislature.
01:08Sufficiently large and compact to constitute a majority in a reasonably configured district.
01:12That's exactly what they did.
01:14I mean, LULAC has some language.
01:16It actually goes back and forth between the two, but we've repeated now several times,
01:22including in our most recent decision, the standard that was used here.
01:27Absolutely, Your Honor, and the way that standard is typically applied is that if there is a
01:33reasonably configured district that is majority-minority, that's the evidence that the minority population
01:38is sufficiently compact.
01:39How, I mean, if you look at CD6, what does reasonably compact mean?
01:45I mean, it's a snake that runs from one end of the state to the other.
01:49I mean, how is that compact?
01:51Well, absolutely, Your Honor, so CD6 is the remedial district.
01:55That was not offered as an illustrative district to prove a Section 2 violation.
01:59And states have flexibility when they are drawing remedial districts that a plaintiff
02:04in a Section 2 case might not have.
02:06We can't draw non-compact districts to prove the Section 2 violation, but once we have
02:10shown that...
02:11But in Robinson, they were looking at a totally normal-looking district, right?
02:15It was a much...
02:16It's kind of square, and it's like there's nothing unusual about it.
02:20Indeed.
02:21It actually looks like the district that the state went in with, right?
02:27Absolutely.
02:28It's very similar to the states, the CD5 in the original map enacted in 2022, and so that's
02:36the evidence that...
02:37It performed better on traditional criteria.
02:39The Robinson map performed better on traditional criteria than Louisiana's map, correct?
02:47Yes, that is correct.
02:49So what do we do about that?
02:51You came up with some compact maps.
02:54Louisiana chose a snake, as the Chief Justice called it, instead, squiggling from one end
02:58of the state to the other.
03:00Even if there were good reason for the district court, for equal protection purposes, the
03:08state had good reason to draw another district.
03:11Did it have good reason to draw this district?
03:13Well, it had good reason to believe that it had to draw some remedial district.
03:17No, I'm spotting that, but we're moving past the preliminary injunction stuff, whether
03:22they had good reason.
03:23I'm asking, is this one narrowly tailored?
03:26Is this one the appropriate district?
03:27Yes.
03:28So the question the court asks there is, does the district that the state drew, the remedial
03:33district, substantially address the violation?
03:35And that's my question for you.
03:36And so here, as Mr. Aguiñaga explained, the district includes a substantial part of the
03:45same population.
03:46The core of the district is identical to the districts that were at issue in Robinson,
03:49to our illustrative districts.
03:51It's about at least 70% of the population.
03:53Of the population, but geographically, it's wildly different.
03:57And so what do we do about that?
03:58Well, I think the geography is not really the issue, because as this court pointed out
04:05back in the 60s in Reynolds versus Sims, legislators represent people.
04:10They don't represent geography.
04:11Yeah, but districting is supposed to take into account, I mean, we're going to go around
04:15the tree, I suppose, but districting is also supposed to take into account compactness
04:20and contiguity, sorry, and traditional districting principles.
04:27And this one, you didn't propose this district.
04:30No, we did not propose this district, but we believe the district remedies the violation
04:35because it includes most of the population from the illustrative districts.
04:38And states are not constrained.
04:40This court has said repeatedly that states don't have to draw the compact districts that
04:45a court would impose.
04:46They can take other considerations into account, including political ones.
04:50And I'm wondering whether or not we're conflating the standards in a way as we have this conversation.
04:55I mean, the original Section 2 violation was established via the map that was compact
05:04that you created that showed that another majority-minority district could be drawn.
05:12And in response to that, the state, for political reasons, said we're not going to adopt that
05:18map.
05:19We need to make a different one in order to reach the goal of remedying this violation
05:26because of political reasons.
05:28So at that point, I'm wondering whether we are even in a world in which strict scrutiny
05:33is applying because the state's motivation for drawing the squiggly snake map is not
05:40race.
05:41Its motivation at that point is clearly politics because that's what it's saying it's doing,
05:46using that map over the one that you proposed.
05:49So do we even need to get into the analysis about narrow tailoring?
05:55Because it seems we've left it because we're now in the world of political map drawing,
06:01right?
06:02Absolutely, Your Honor.
06:03And the line this court has long drawn is between consciousness of race and racial predominance.
06:08And that distinction is important to preserving states' flexibility to account for these kinds
06:13of political considerations while also complying with federal law.
06:16And what I hear you saying is the reason why we're looking at a snake-like map rather than
06:20the compact map is because of political considerations.
06:24Politics is the only reason that the state chose that map over the compact maps that
06:28were offered in Robinson.