No. 23A282
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`
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`In the Supreme Court of the United States
`____________________
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`EDWARD GALMON, et al.
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`
`Applicants
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`v.
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`KYLE ARDOIN, LOUISIANA SECRETARY OF STATE, et al.
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`
`Respondents.
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`_______________________________
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`RESPONSE TO EMERGENCY APPLICATION
`FOR STAY OF WRIT OF MANDAMUS
`_______________________________
`
`
`JASON B. TORCHINSKY
`PHILLIP M. GORDON
`EDWARD M. WENGER
`HOLTZMAN VOGEL BARAN TORCHINSKY &
`JOSEFIAK, PLLC
`15405 John Marshall Highway
`Haymarket, VA 20169
`jtorchinsky@holtzmanvogel.com
`
`JEFF LANDRY
` Louisiana Attorney General
`ELIZABETH B. MURRILL
` Solicitor General
`SHAE MCPHEE
` Deputy Solicitor General
`MORGAN BRUNGARD
` Assistant Solicitor General
`ANELIQUE DUHON FREEL
`CAREY TOM JONES
`JEFFREY M. WALE
` Assistant Attorneys General
`OFFICE OF THE ATTORNEY GENERAL
`LOUISIANA DEPARTMENT OF JUSTICE
`P.O. Box 94005
`Baton Rouge, LA 70804
`murrille@ag.louisiana.gov
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`
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`
`
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`
`
`Counsel for the State of Louisiana
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`1
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`JOHN C. WALSH
`SHOWS, CALI & WALSH, L.L.P.
`P.O. Box 4046
`Baton Rouge, LA 70821
`john@scwllp.com
`
`PHILLIP J. STRACH
`THOMAS A. FARR
`ALYSSA M. RIGGINS
`NELSON MULLINS RILEY &
`SCARBOROUGH, LLP
`301 Hillsborough Street, Suite 1400
`Raleigh, NC 27063
`phillip.strach@nelsonmullins.com
`
`Counsel for R. Kyle Ardoin, in his official capacity as Secretary of State of
`Louisiana
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`2
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`A. At this stage in the proceedings, the State has a clear and
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`indisputable right to be free from the imposition of a court-
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`drawn remedial map. ............................................................................ 10
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`B. The State had no other way to secure relief except for a
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`petition for a writ of mandamus. .......................................................... 16
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`C. The tremendous importance of this case justified mandamus
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`relief. ...................................................................................................... 18
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`TABLE OF CONTENTS
`TABLE OF AUTHORITIES .......................................................................................... ii
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`INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 5
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`STATEMENT OF THE CASE ....................................................................................... 6
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`ARGUMENT .................................................................................................................. 9
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`I. THE PLAINTIFFS CANNOT SHOW ANY LIKELIHOOD OF SUCCESS ON
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`THEIR ARGUMENT THAT THE FIFTH CIRCUIT ERRED BY ISSUING A WRIT
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`OF MANDAMUS. .............................................................................................. 10
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`II. THE PLAINTIFFS WILL SUFFER NO INJURY WHATSOEVER BY THE FIFTH
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`CIRCUIT’S MANDAMUS ORDER. ....................................................................... 19
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`III. THE BALANCE OF THE EQUITIES TILT HEAVILY IN FAVOR OF ALLOWING
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`THE MANDAMUS ORDER TO REMAIN IN EFFECT. ............................................. 20
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`IV. THIS COURT SHOULD NOT CONSTRUE PLAINTIFF’S APPLICATION AS A
`PETITION FOR WRIT OF CERTIORARI. ............................................................... 21
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`CONCLUSION ............................................................................................................. 23
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`3
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`TABLE OF AUTHORITIES
`
`Cases
`Allen or Students for Fair Admission, Inc. v. President & Fellows of Harvard
`College,
`600 U.S. 181 (2023) ..................................................................................... 4, 10, 14
`Allen v. Milligan,
`599 U.S. 1 (2023) ......................................................................................... 2, 3, 8, 9
`Ardoin v. Robinson,
`143 S. Ct. 2654 (2023) ......................................................................................... 1, 5
`Cheney v. U.S. Dist. Court,
`542 U.S. 367 (2004) ............................................................................................... 14
`Conkright v. Frommert,
`556 U.S. 1401 (2009) ........................................................................................... 5, 6
`Cooper v. Harris,
`581 U.S. 285 (2017) ............................................................................................... 14
`Covington v. North Carolina,
`316 F.R.D. 117 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017) ....................... 8, 18
`Fayerweather v. Ritch,
`195 U.S. 276 (1904) ................................................................................................. 7
`In re Gee,
`941 F.3d 153 (5th Cir. 2019) ................................................................................... 6
`In re Lloyd's Register N. Am., Inc.,
`780 F.3d 283 (5th Cir. 2015) ................................................................................. 13
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ................................................................................... 6
`Ind. State Police Pension Trust v. Chrysler LLC,
`556 U.S. 960 (2009) ............................................................................................. 5, 6
`Jackson Women's Health Org. v. Currier,
`760 F.3d 448 (5th Cir. 2014) ................................................................................. 14
`League of Women Voters of N.C. v. North Carolina,
`769 F.3d 224 (4th Cir. 2014) ................................................................................. 17
`Obama for Am. v. Husted,
`697 F.3d 423 (6th Cir. 2012) ................................................................................. 17
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`4
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`Reynolds v. Sims,
`377 U.S. 533 (1964) ............................................................................................... 10
`Robinson v. Ardoin,
`605 F. Supp. 3d 759 (M.D. La. 2022) ................................................................... 8-9
`Roche v. Evaporated Milk Ass’n,
`319 U.S. 21 (1943) ................................................................................................. 14
`Satanic Temple, Inc. v. Tex. Health & Hum. Serv. Comm’n ,
`No. 22-20459, 2023 WL 5316718 (5th Cir. Aug. 18, 2023) .................................. 12
`Shelby County v. Holder,
`570 U.S. 529 (2013) ............................................................................................... 10
`Taylor v. Sturgell,
`553 U.S. 880 (2008) ................................................................................................. 7
`Thornburg v. Gingles,
`478 U.S. 30 (1986) ................................................................................................... 8
`Univ. of Tex. v. Camenisch,
`451 U.S. 390 (1981) ................................................................................................. 7
`Wise v. Lipscomb,
`437 U.S. 535 (1978) ............................................................................................... 10
`
`Statutes
`La. Stat. Ann. § 18:467 ................................................................................................ 6
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`Other Authorities
`11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
`§ 3905.1 ...................................................................................................................... 12
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`5
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`INTRODUCTION AND SUMMARY OF ARGUMENT
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`This case is manifestly not about “ordinary docket management.” Appl. of
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`Robinson Pls. at 1; Appl. of Galmon Pls. at 3. If the Fifth Circuit had not granted
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`mandamus relief, then (1) the State would have been deprived of the opportunity to
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`fully and fairly defend itself against Plaintiffs’ Section 2 claims, (2) the Louisiana
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`Legislature would have lost the opportunity to draw a new map in the first instance
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`that conformed to the district court’s order, and (3) the case would have devlolved into
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`procedural chaos, making it impossible to resolve the Plaintiffs’ claims before the
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`approaching congressional election cycle. Since the Fifth Circuit issued the writ, this
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`case is now in fact proceeding—as this Court commanded––“in the ordinary course
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`and in advance of the 2024 congressional elections in Louisiana.” Ardoin v. Robinson,
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`143 S. Ct. 2654 (2023). So long as the district court heeds the warning of the Fifth
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`Circuit, it remains possible that the Plaintiffs’ Section 2 claims will be fully resolved
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`before another congressional election cycle. It could not be so without the Fifth
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`Circuit’s intervention.
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`The Court should reject Plaintiffs’ Application, as well as their request to treat
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`their Application as a writ of certiorari. Plaintiffs will suffer no injury whatsoever
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`(irreparable or otherwise) if they are forced to actually prove their Section 2 claims
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`in a fulsome trial on the merits.1 Nor will an injury arise if they are denied their
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`request to strip away the legislature’s right to draw a remedial map in the first
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`1 The appeal on the merits of the preliminary injunction was heard by a three-judge panel of the
`United States Court of Appeals for the Fifth Circuit on October 6, 2023. Robinson v. Ardoin, No.
`22039333. The merits panel is well aware of both this mandamus proceeding and the calendar issues
`involved with resolving the mase on the merits.
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`6
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`instance. And in any event, their arguments are manifestly wrong. This Court’s
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`unbroken pronouncements establish that their preliminary win via a rushed
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`preliminary-injunction hearing is no substitute for a final trial on the merits. The
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`Plaintiffs’ attempt to skirt the normal litigation process demonstrates that the
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`equities weigh decidedly in the State’s favor.2
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`STATEMENT OF THE CASE
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`The Plaintiffs’ recistation of the proceedings remains skewed; additional
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`context is warranted. Start with the 2022 preliminary-injunction proceedings. The
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`district court, over the State’s objection, forced the State to defend its legislatively
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`created maps without giving it enough time to do so effectively, affording it, for
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`instance, only two weeks to prepare expert reports. After the preliminary-injunction
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`hearing, one in which the State had to pick and choose which evidence it had the time
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`to present, the district court took no action for twenty-four days. Then—on the last
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`day of the State’s legislative session—the district court issued its injunction and
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`memorandum opinion, which invalidated the Congressional map because the map
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`did not include a second majority-Black district.
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`What happened next is critical to understanding the Fifth Circuit’s mandamus
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`opinion. The district court ordered the Lousiana legislature to enact a remedial plan,
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`even though the legislative session had ended. Despite this impediment, the district
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`2 This case stands on stark contrast to Allen v. Milligan, 599 U. S. 1 (2023), where this Court stayed
`the lower court remedy proceedings pending the outcome of appellate review of the merits of the
`preliminary injunction. In this case, the district court was proceeding ahead with remedial
`proceedings as the appeals court is in the process of reviewing the merits of the preliminary liability
`findings.
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`7
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`court ordered the legislature to give the court new maps in fourteen days (seven of
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`which fell inside the Louisiana constitution’s notice requirement for calling a special
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`legislative session) to enact a new plan before the district court would create one
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`itself. Given the requirements of the Louisiana constitution, the legislature had four
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`actual days to create new maps.
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`Although the district court indicated it would “favorably consider a Motion to
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`extend the time to allow the legislature to complete its work,” when the Legislative
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`Defendants moved for an extension of time, the court ordered the Speaker and Senate
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`President to “appear IN PERSON to offer testimony in support of the” motion, which
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`occured on the morning of the second legislative day of the six allotted to the
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`legislature to redistrict. App. 1 (emphasis in original). During that hearing, the
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`district court suggested that it had the authority to suspend the notice provision of
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`the state constitution. App. 11. It threatened the Speaker with contempt. App. 78–
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`79. And it demanded the legislature dispense with its regular rules and procedures.
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`App. 88–89. The district court ultimately denied the motion from the bench and
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`announced its intent to “hammer out a remedial process” immediately. App. 91–92.
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`Ultimate relief came only through this Court’s 2022 stay pending its decision in Allen
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`v. Milligan, 599 U. S. 1 (2023).
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`Next came the subsequent remedial proceedings. In light of this Court’s
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`reactivation of this case, the district court conducted a status conference on July 12,
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`2023. On July 17, 2023, it issued an order stating that “the preliminary injunction
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`hearing stayed by the United States Supreme Court, and which stay has been lifted,
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`8
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`be and is hereby reset to October 3–5, 2023.” App. 102. The trial court showed no
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`interest in considering the import of this Court’s decision in Allen or Students for Fair
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`Admission, Inc. v. President & Fellows of Harvard College, 600 U. S. 181 (2023), on
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`the merits of the Plaintiffs’ Section 2 claims. In fact, the import of those cases have
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`yet to have been briefed before the district court.
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`The parties submitted competing scheduling orders. The Plaintiffs proposed a
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`schedule that would allow “for any party . . . to submit a new or amended map along
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`with supporting expert evidence,” App. 129, while the State explained why doing so
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`on an expedited basis would not work, since new plans meant redoing all the expert
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`analyses required to litigate those plans, App. 103–10. No scheduling order was
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`entered for 48 days. App. 156–57.
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`To avoid congressional-election chaos, the State, on August 25, 2023, filed an
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`emergency motion to cancel the hearing on remedy and to instead enter a scheduling
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`order for trial. App. 134–35. Among other things, the motion reminded the district
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`court that it would be impossible to prepare for a three-day fact-intensive remedial
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`map hearing in six weeks without a scheduling order, briefing, new maps, or
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`exchange of expert material. App. 141–44. The district court denied the motion on
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`August 29, 2023, in an order that addressed none of the objections that the State
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`raised. App. 154–55. Instead, the court merely asserted that the “case has been
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`extensively litigated” and that there was “adequate time to update the discovery
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`needed in advance of the hearing.” Id.
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`9
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`The State remained aware that (1) it could not take an interlocutory appeal of
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`the district court’s denial of its motion, (2) even though the appeal from the 2022
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`preliminary-injunction order remained pending at the Fifth Circuit, the Fifth Circuit
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`has no jurisdiction to consider arguments related to proceedings that occurred after
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`that appeal was perfected in June 2022, (3) appealing to the Fifth Circuit from the
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`forthcoming remedial order would mean two separate Fifth Circuit preliminary-
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`injunction opinions, and (4) all of this guaranteed that this case would not conclude
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`before the 2024 election cycle descended into pandamonium. In other words, the State
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`had no other choice but to petition for a writ of mandamus. It did so, the Fifth Circuit
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`agreed, and now this case has some hope of (finally) proceeding with a semblance of
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`normalcy; i.e., “in the ordinary course and in advance of the 2024 congressional
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`elections in Louisiana.” Robinson, 143 S. Ct., at 2654.
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`ARGUMENT
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`
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`The Court should deny Plaintiffs’ Emergency Application for Stay of Writ of
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`Mandamus. None of this Court’s traditional stay factors weigh in Plaintiffs’ favor.
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`First, Plaintiffs cannot demonstrate “a reasonable probability that four Justices will
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`consider the issue sufficiently meritorious to grant certiorari or to note probable
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`jurisdiction” or “a fair prospect that a majority of the Court will conclude that the
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`decision below was erroneous.” See Ind. State Police Pension Trust v. Chrysler LLC,
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`556 U. S. 960, 960 (2009) (per curiam) (quoting Conkright v. Fommert, 556 U. S. 1401
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`(2009) (Ginsburg, J., in chambers)). In other words, Plaintiffs fail to establish
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`likelihood of success on the merits. Second, Plaintiffs will suffer no harm, let alone
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`10
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`irreparable harm, if their Application is denied. See id. And third, the balance of the
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`equities weigh decidedly in the State’s favor. See id. (“[I]n a close case it may be
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`appropriate to balance the equities,’ to asses the relative harms to the parties, ‘as
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`well as the interests of the public at large.’” (quoting Ind. State Police Pension Trust,
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`556 U. S., at 960).
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`I.
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`THE PLAINTIFFS CANNOT SHOW ANY LIKELIHOOD OF SUCCESS ON THEIR
`ARGUMENT THAT THE FIFTH CIRCUIT ERRED BY ISSUING A WRIT OF
`MANDAMUS.
`The Fifth Circuit committed no error when it issued the State’s petition for a
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`mandamus. Specifically, (1) the State had a clear and indisputable right to it, (2) it
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`had no other adequate means of relief, and (3) issuance was plainly appropriate under
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`the circumstances.” In re Gee, 941 F.3d 153, 157 (CA5 2019) (per curiam); In re
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`Volkswagen of Am., Inc., 545 F.3d 304, 311 (CA5 2008) (en banc). The Plaintiffs have
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`not, and cannot, show that the the Fifth Circuit mistakenly applied any of these
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`prongs.
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`A. At this stage in the proceedings, the State has a clear and
`indisputable right to be free from the imposition of a court-drawn
`remedial map.
`1. While the district court’s hasty preliminary-injunction proceedings might
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`have been justified in early summer 2022 (given the imminence of the fall 2022
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`congressional elections), perpetuating those flawed findings cannot be jusfied now
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`that the 2024 elections are more than a year away and candidate qualifying is
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`approximately nine months away. See La. Stat. Ann. § 18:467(2). The State asked the
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`district court to allow it its day in court—i.e., dispense with a preliminary-injunction
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`remedial hearing and instead set a full trial on the merits while there remained time
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`11
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`to do so. The district court refused. And that refusal denied the State a legal right to
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`which it was manifestly entitled.
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`Preliminary injunction proceedings are just that—preliminary. “The purpose
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`of a preliminary injunction is merely to preserve the relative positions of the parties
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`until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U. S. 390, 395
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`(1981) (emphasis added). “Given this limited purpose, and given the haste that is
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`often necessary if those positions are to be preserved, a preliminary injunction is
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`customarily granted on the basis of procedures that are less formal and evidence that
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`is less complete than in a trial on the merits.” Id.
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`Most critically, “[a] party . . . is not required to prove his case in full at a
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`preliminary-injunction hearing, . . . and the findings of fact and conclusions of law
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`made by a court granting a preliminary injunction are not binding at trial on the
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`merits.” Id. (emphasis added). And, for more than a century, this Court has enshrined
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`the notion that every litigant must be afforded “an opportunity to present” its defense
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`and then to have a “question” actually “decided” against it before a remedy may issue.
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`Fayerweather v. Ritch, 195 U. S. 276, 299 (1904).
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`Simply put, deciding that a claim is “likely to succeed” is not the same as
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`“actually litigat[ing] and resolv[ing]” a claim. Taylor v. Sturgell, 553 U. S. 880, 892
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`(2008). And providing a remedy for a claim that has not yet been “actually litigated
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`and resolved” offends every notion of fundamental fairness. Id.; see also
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`Fayerweather, 195 U. S., at 299. This is even more true in the Section 2 context, where
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`courts “must ‘conduct an intensely local appraisal’ of the electoral mechanism at
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`12
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`issue, as well as a ‘searching practical evaluation of the ‘past and present reality.’”
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`Allen, 599 U. S., at 19 (quoting Thornburg v. Gingles, 478 U. S. 30, 79 (1986)). That
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`means mountains of expert and fact discovery. And both the quantity and quality of
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`the evidentiary presentation matters, especially as a court weighs “the most difficult
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`task a legislative body ever undertakes.” Covington v. North Carolina, 316 F.R.D.
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`117, 125 (M.D. N.C. 2016) (three-judge court), aff’d, 137 S. Ct. 2211 (2017).
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`At no point in either the Plaintiffs’ twin applications for an emergency stay (or
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`in the brief of their Amici) are any of these points discussed. And for good reason.
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`They have no defensible legal argument for short-circuiting the normal litigation
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`process. The only argument they have is the one they can’t make in good faith to this
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`Court: they like their preliminary win, which came under the auspices of relaxed
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`evidentiary rules and the fog of an impending Purcell fight, but they aren’t confident
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`that it will persist if they are forced to adjudicate their claims fully, fairly, finally and
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`with an adequate time for the State to mount a defense in a trial on the merits and
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`after fulsome appellate review.
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`This is particularly true given this Court’s recent Allen and Students for Fair
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`Admission opinions. In Allen, the Court addressed Section 2 for the first time in
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`fourteen years and clarified how the Gingles preconditions apply. Relevant to this
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`case, the Court elucidated “how traditional districting criteria limit[] any tendency of
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`the VRA to compel proportionality,” Allen, 599 U. S., at 28, which means that the
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`district court’s reliance (in part) on proportionality as a legitimate goal is no longer
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`tenable and must be revisited. See Robinson v. Ardoin, 605 F. Supp. 3d 759, 851 (M.D.
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`13
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`La. 2022). Allen also emphasized the centrality of communities of interest in the
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`Section 2 analysis, which has featured prominently at every stage of this case. See
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`599 U. S., at 21. And Justice Kavanaugh’s concurring opinion in Allen stressed that
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`it is the compactness of the minority community—not solely the compactness of the
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`proposed districts—that must be evaluated. Id. at 43 (Kavanaugh, J., concurring).
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`It is of no moment that this Court affirmed the preliminary-injunction in Allen.
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`Factually, Alabama and Louisiana are different in particularly relevant ways, none
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`of which have ever been subject to the adjudicatory crucible. And because nearly all
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`of the Plaintiffs’ illustrative maps in this case divide Louisiana’s urban areas such as
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`Monroe, Lafayette, Alexandria, and East Baton Rouge along racial lines, the only way
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`to construct a second majority black district in Louisiana is to link disparate minority
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`communities separated by hundreds of miles.3 Just as a basic factual distinction,
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`Alabama has 11 majority black counties that all border each other, while Louisisana
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`has only 7 majority black parishes, and only three of them border each other (and
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`contain a total of under 30,000 residents). To put it another way, there is no “Black
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`belt” equivalent in Louisiana.
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`This means that Students for Fair Admission, which fundamentally changed
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`the way in which States may consider race when taking state action, also must be
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`considered. In that case, the Court stressed that as race-based legislative acts reach
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`their intended ends, they become obsolete and less likely to survive Equal Protection
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`3 In Allen, the remedy proceeding did not move forward until the appeals court (this Court in that case)
`reviewed the merits of the liability finding. In this case, a merits panel of the Fifth Circuit heard the
`appeal on the merits of the preliminary injunction proceeding’s liability finding on October 6, 2023,
`and a decision is currently pending.
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`14
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`scrutiny. Students for Fair Admission, 600 U. S., at 206–08. This principle followed
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`the Court’s decision in Shelby County v. Holder, which struck as unconstitutional a
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`different Voting Rights Act provision because “[o]ur country has changed, and while
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`any racial discrimination in voting is too much, Congress must ensure that the
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`legislation it passes to remedy that problem speaks to current conditions.” 570 U. S.
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`529, 557 (2013).
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`This changing legal landscape directly affects the issues presented in this case.
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`The Fifth Circuit correctly recognized the profound injustice that would plague the
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`State if the district court were allowed to issue a remedy. The Plaintiffs have not, and
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`cannot, demonstrate any likelihood that the Fifth Circuit got this wrong.
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`2. The Fifth Circuit also correctly held that the district court manifestly
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`abused its discretion by taking the map-drawing responsibility away from the State
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`legislature. For decades, see Reynolds v. Sims, 377 U.S. 533, 586 (1964), this Court
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`has “repeatedly held that redistricting and reapportioning legislative bodies is a
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`legislative task which the courts should make every effort not to preempt.” Wise v.
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`Lipscomb, 437 U.S. 535, 540 (1978). “[I]t is therefore, appropriate, whenever
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`practicable, to afford a reasonable opportunity for the legislature to meet
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`constitutional requirements by adopting a substitute measure rather than for the
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`federal court to devise and order into effect its own plan.” Id.
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`The district court hasn’t ever afforded the legislature with a meaningful
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`opportunity to do this. At best it gave lip service to this approach back in Summer
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`2022. But when the legislature asked for an additional ten-days (on top of the four
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`15
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`that the district court gave it to complete its task), the district court suggested that
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`the Speaker should be held in contempt and offered to start suspending provisions of
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`the Louisiana Constitution that structure how the State passes its laws. And now,
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`that the 2024 congressional elections are still a year away, it has never suggested
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`that this quintessentially legislative, political function should be returned to the
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`branch most directly connected to the Louisiana electorate.
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`It is no answer, as Plaintiffs seem to believe, that the State asked for a remedy
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`beyond that which the Fifth Circuit eventually granted. The State asked for
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`cancellation of the remedial hearing and instructions to set a trial. The Fifth Circuit
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`gave them the former but not the latter. Not one case of which the undersigned is
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`aware suggests that granting partial relief to a mandamus petitioner constitutes
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`reversible error, and for their part, the Plaintiffs have cited none.
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`The Plaintiffs’ argument that the legislature has not yet taken it upon itself to
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`create a remedial map provides no support for the argument that the Fifth Circuit
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`erred. The legislature is currently defending its enacted map via a merits appeal from
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`the 2022 preliminary-injunction liability finding (oral argument was held in that
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`proceeding on Friday, October 6, 2023). It makes no sense for the Louisiana
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`legislature to effect a remedy against itself while seeking to demonstrate that the
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`district court was wrong to conclude that the Plaintiffs’ are entitled to a remedy. The
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`Plaintiffs’ argument, then, is little more than another misguided suggestion that the
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`State should be faulted for availing itself of its day in court. The Court should reject
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`this notion.
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`16
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`B. The State had no other way to secure relief except for a petition for
`a writ of mandamus.
`Plaintiffs’ contentions that the State had another meaningful way to secure
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`the relief it sought are specious. As an initial matter, there is no rule, statute, or
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`doctrine for which the undersigned is aware that would have let the State appeal
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`immediately from the district court’s denial of the State’s emergency motion to cancel
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`the remedial hearing. The Plaintiffs’ suggestion that it could have demonstrates
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`either an ignorance with how appellate jurisdiction works or possibly desperation.
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`See Appl. of Robinson Pls. at 4; Appl. of Galmon Pls. at 3.
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`The Plaintiffs’ argument that the State should have raised these issues to the
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`Fifth Circuit panel adjudicating the merits of the preliminary-injunction order is
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`similarly flawed. The district court set its remedial hearing more than a year after
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`the State noticed its appeal from the preliminary-injunction order. The merits panel
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`addressing that portion of this case does not have appellate jurisdiction to address
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`any of the irreparable injuries that have been, or will be, inflicted after the summer
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`2022 order giving rise to that appeal. All those errors, including the ones alleged via
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`the State’s mandamus petition, merge into the final judgment or another
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`interlocutory appeal of the remedial map for purposes of this Court’s jurisdiction.4
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`And the nail in the coffin of this argument is Judge Ho’s observation that “[h]ad the”
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`preliminary-injunction panel “requested transfer of th[e] mandamus proceeding to its
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`4 See 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3905.1 (“[T]he
`general rule [is] that an appeal from final judgment opens the record and permits review of all rulings
`that led up to the judgment.”); id. § 2962 (“Upon an appeal from the final decree every interlocutory
`order affecting the rights of the parties is subject to review in the appellate court.”); see also Satanic
`Temple, Inc. v. Texas Health & Hum. Serv. Comm’n, No. 22-20459, 2023 WL 5316718, at *2 (CA5 Aug.
`18, 2023).
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`17
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`current docket,” he “imagine[s] [he] would’ve agreed[,] . . . [b]ut no such request was
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`made.” App. 170 n.2 (emphasis added).
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`Finally, it makes no sense to insist that the case proceed along the course set
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`by the district court, only to take an appeal after this case has sorted itself out in a
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`final judgment that the district court seems wholly disinclined to reach. As of the date
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`of this filing, the district court has still not set a trial date.5 Allowing entry of a court-
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`drawn remedial map, appealing from that order, then proceeding to a full trial on the
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`merits, then appealing from that judgment, means that there will be no resolution of
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`these issues until well after the 2024 congressional elections. In other words, the error
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`“will have worked irreversible damage and prejudice” on the State “by the time of
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`final judgment,” In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 289 (CA5 2015),
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`because another congressional election will have come and gone under the shadow of
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`unresolved Section 2 litigation. The State doesn’t want that; the Plaintiffs shouldn’t
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`either.
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`The Fifth Circuit’s mandamus order avoided an “embarrass[ment]” to “the
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`federal judiciary” and a trouncing of “rational procedures.” App. 162. Reversing the
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`Fifth Circuit’s mandamus would subject the State to two tracks of proceedings—one
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`for the merits and one for the rushed remedial plan. The State had no choice but to
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`seek relief through a petition for a writ of mandamus. And the Fifth Circuit was right
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`to agree.
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`5 The District Court did set an in-person status conference for October 17, 2023 shortly after this
`Court issued its call for response to this application.
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`18
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`C. The tremendous importance of this case justified mandamus relief.
`Again, what this case is about should be lost on no one. At issue are the
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`constitutional and statutory voting rights of hundreds of thousands (maybe millions)
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`of Louisiana citizens when they cast their ballots during the 2024 congressional
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`elections. It is, of course, “always in the public interest to prevent the violation of a
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`party’s constitutional rights,” Jackson Women’s Health Org. v. Currier, 760 F.3d 448,
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`458 n.9 (CA5 2014), which in and of itself counsels in favor rejecting the Application.
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`Additionally, the district court’s preliminary-injunction order that will guide any
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`remedial determination requires the State to consider race in redistricting, and the
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`more that the State does so, the more it offends the fundamental Equal Protection
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`Rights enshrined in the Fourteenth Amendment. See Students for Fair Admission,
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`600 U. S., at 206–08. Because “race-based sorting of voters” may be allowed only if
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`doing so “serves a ‘compelling interest’ and is ‘narrowly tailored’ to that end,” Cooper
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`v. Harris, 581 U. S. 285, 292 (2017), this Court should reject the Application to make
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`sure the State has the opportunity to defend against the race-based sorting that the
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`Plaintiffs request.
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`“The traditional use” of the writ of mandam