Robinson v. Ardoin

Case: 22-30333     Document: 00516963938          Page: 1    Date Filed: 11/10/2023




           United States Court of Appeals
                for the Fifth Circuit
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                ____________                                   FILED
                                                                       November 10, 2023
                                  No. 22-30333                            Lyle W. Cayce
                                ____________                                   Clerk

   Press Robinson; Edgar Cage; Dorothy Nairne; Edwin
   Rene Soule; Alice Washington; Clee Earnest Lowe;
   Davante Lewis; Martha Davis; Ambrose Sims; National
   Association for the Advancement of Colored People
   Louisiana State Conference, also known as NAACP; Power
   Coalition for Equity and Justice,

                                                            Plaintiffs—Appellees,

                                      versus

   Kyle Ardoin, in his official capacity as Secretary of State for Louisiana,

                                                          Defendant—Appellant,

   Clay Schexnayder; Patrick Page Cortez; State of
   Louisiana - Attorney General Jeff Landry,

                                               Intervenor Defendants—Appellants,


   ______________________________


   Edward Galmon, Sr.; Ciara Hart; Norris Henderson;
   Tramelle Howard,

                                                            Plaintiffs—Appellees,

                                      versus
Case: 22-30333      Document: 00516963938         Page: 2     Date Filed: 11/10/2023




   Kyle Ardoin, in his official capacity as Secretary of State for Louisiana,

                                                          Defendant —Appellant,

   Clay Schexnayder; Patrick Page Cortez; State of
   Louisiana - Attorney General Jeff Landry,

                                             Movants—Appellants.
                   ______________________________

                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                     USDC Nos. 3:22-CV-211, 3:22-CV-214
                   ______________________________

   Before King, Elrod, and Southwick, Circuit Judges.
   Leslie H. Southwick, Circuit Judge:
          Plaintiffs challenge the Louisiana Legislature’s 2022 redistricting map
   for electing the state’s six members of the United States House of Represent-
   atives. The district court preliminarily enjoined use of that map for the 2022
   congressional elections. The United States Supreme Court stayed that in-
   junction, pending resolution of a case involving Alabama’s congressional re-
   districting plan. About a year later, the Supreme Court resolved the Alabama
   case. We now apply the Court’s reasoning to the Louisiana redistricting.
          We are reviewing the grant of a preliminary injunction and not a final
   judgment in this case. The district court did not clearly err in its necessary
   fact-findings nor commit legal error in its conclusions that the Plaintiffs were
   likely to succeed on their claim that there was a violation of Section 2 of the
   Voting Rights Act in the Legislature’s planned redistricting. Nevertheless,
   the district court’s 2022 preliminary injunction, issued with the urgency of
   establishing a map for the 2022 elections, is no longer necessary. After oral




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   argument, we are convinced the parties can proceed beyond the stage of a
   preliminary injunction to accomplish the following tasks.
          We will allow the Louisiana Legislature until January 15, 2024, to en-
   act a new congressional redistricting plan, to consider but reject adopting a
   new plan, or for the defendant Secretary of State and/or Attorney General to
   inform the district court that no special session of the Legislature will be
   called for this purpose. It is true the State did not request such an oppor-
   tunity in its briefing to this court, but an opportunity to adopt a new plan is
   appropriate since redistricting is a quintessential obligation of a state after a
   census. Further, in recent filings with the Supreme Court, the State did urge
   allowing the Legislature to act. The district court is not to conduct any pro-
   ceedings on the merits of the claim until after the Louisiana Legislature con-
   cludes its consideration of adopting a new plan, or the district court is in-
   formed that no new plan will be considered, or January 15, 2024, whichever
   comes first. The district court will also have discretion to grant limited addi-
   tional time if requested.
          The present uncertainty of what will occur by January 15 leaves the
   next steps contingent. If the Legislature adopts a new plan, then proceedings
   in district court can begin immediately after that occurs. If the Plaintiffs ob-
   ject to the plan, then the district court will again need to consider whether
   the plan is consistent with Section 2 of the Voting Rights Act or, instead,
   whether another preliminary injunction is needed. On the other hand, as
   soon as it becomes clear there will be no new plan to consider, the district
   court should proceed beyond the preliminary injunction stage for review of
   H.B. 1. It should conduct a trial on the merits of the validity of the plan, and,
   if held to be invalid, decide on a plan for the 2024 elections.
          At oral argument before this court, defense counsel suggested a Feb-
   ruary 15, 2024, start date for a trial on the merits to allow newly elected




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                                        No. 22-30333


   officials to play an effective role in the process. He additionally suggested a
   May 30 deadline for a new map to be drawn, approved, and enacted for the
   2024 elections. We mention those only to indicate the State has offered sug-
   gestions. The district court will need to make its own decision on the proper
   scheduling. The court is to conclude all necessary proceedings in sufficient
   time to allow at least initial review by this court and for the result to be used
   for the 2024 Louisiana congressional elections.
               PROCEDURAL AND FACTUAL BACKGROUND
           All states must redraw their congressional district boundaries follow-
   ing each decennial census. U.S. Const. art. I, § 2, cl. 3. The 2020 census
   showed Louisiana’s population had increased since 2010, especially the mi-
   nority populations. This census data was delivered in April 2021 and re-
   vealed that Louisiana would continue to have six congressional seats. Robin-
   son v. Ardoin, 

, 767 (M.D. La. 2022).
           At its 2021 regular session, the Louisiana Legislature adopted Rule
   No. 21 of the Joint Rules of the Senate and House of Representatives, which
   established redistricting criteria.1 The first paragraph of the Rule states: “To
   promote the development of constitutionally and legally acceptable redis-
   tricting plans, the Legislature of Louisiana adopts the criteria contained in
   this Joint Rule, declaring the same to constitute minimally acceptable criteria
   for consideration of redistricting plans in the manner specified in this Joint
   Rule.” La. Leg. J.R. 21A. The district court considered the requirements of
   the Joint Rule throughout its opinion granting the preliminary injunction.
           In preparation for its redistricting session, the Legislature held public
   meetings throughout the state, starting in October 2021 and ending in
           _____________________
           1
             Joint Rule 21 was adopted by the approval of H. Con. Res. 90, 2021 Reg. Sess.,
   eff. June 11, 2021. See http://legis.la.gov/legis/Law.aspx?d=1238755.




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   January 2022. The meetings presented information about the redistricting
   process and solicited public comment. Robinson, 605 F. Supp. 3d at 767. Leg-
   islators stated these meetings were “absolutely vital to this process.” Id.
   The parties refer to these as the “roadshow” meetings. Id. The Legislature
   then convened in an extraordinary session on February 1, 2022, to begin the
   redistricting process. Id. at 767–68. House Bill 1 and Senate Bill 5 were iden-
   tical bills that set forth a congressional district map for the 2022 election. Id.
   at 768. Each was passed in its respective chamber on February 18, 2022. Id.
   “[T]he congressional districts in the 2022 enacted plan strongly resemble the
   previous districts” the Legislature adopted in 2011. Id. at 796. The Second
   Congressional District remained the only one of the six with a black majority.
   Id. at 768.
          On March 9, 2022, Louisiana Governor John Bel Edwards separately
   vetoed H.B. 1 and S.B. 5. Governor’s Veto Letters to Speaker of the House
   and President of the Senate, reprinted in 2022 OFFICIAL JOURNAL AND LEG-
   ISLATIVE CALENDAR OF THE PROCEEDINGS OF THE HOUSE OF REPRESENT-
   ATIVES AND SENATE OF THE STATE OF LOUISIANA, 48TH EXTRAORDINARY
   SESS. AND 2ND VETO SESS., at 188–89, 194–95 (2022). He wrote each cham-
   ber “that this map violates Section 2 of the Voting Rights Act of 1965 and
   further is not in line with the principle of fundamental fairness that should
   have driven this process.” Id. Governor Edwards applauded proposed maps
   that would have created two majority-black districts. Id. On March 30, 2022,
   the Legislature overrode Governor Edwards’s veto of H.B. 1, and the map
   became law. Id. at 189–90 (House); 195–96 (Senate).
          The same day the veto of H.B. 1 was overridden, two separate Plaintiff
   groups filed complaints against Louisiana Secretary of State Kyle Ardoin in
   district court, alleging the enacted map diluted black voting strength. Robin-
   son, 605 F. Supp. 3d at 768. The Plaintiffs claimed that the majority of black
   voters were “packed” into the single black-majority district, and the



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                                     No. 22-30333


   remaining were “cracked” among the other five districts. Id. They argued
   this caused the black voters to be sufficiently outnumbered so as to ensure
   unequal participation in the voting process, id., and Louisiana was required
   under the Voting Rights Act to create a second black-majority district. Rob-
   inson v. Ardoin, 

 (5th Cir. 2022).
          After the complaints were filed, Patrick Page Cortez, President of the
   Louisiana State Senate; Clay Schexnayder, Speaker of the Louisiana House
   of Representatives; and Louisiana Attorney General Jeff Landry all moved to
   intervene as Defendants. Robinson, 605 F. Supp. 3d at 768–69. The Louisi-
   ana Black Caucus was also allowed to intervene. Id. at 769. The district court
   then consolidated the two Plaintiffs’ suits. Id.
          The Plaintiffs filed motions for a preliminary injunction on April 15,
   2022. The Plaintiffs sought to enjoin Secretary Ardoin from utilizing the en-
   acted map in the 2022 congressional elections, to set a deadline for the Leg-
   islature to enact a Section 2-compliant map, and, if the Legislature failed to
   do so, to order the November 2022 election be conducted under one of the
   illustrative plans proposed by the Plaintiffs.
          The district court conducted an expedited five-day evidentiary hear-
   ing on the preliminary injunction in May 2022. Id. Attorney General Landry
   filed an emergency motion to stay mere days before the hearing was to begin,
   arguing that the Supreme Court’s Allen v. Milligan, 

 (2023), deci-
   sion was “likely to substantially affect or be fully dispositive” of this case.
   The district court denied the motion, reasoning that “[t]he blow to judicial
   economy and prejudice to Plaintiffs that would result from granting the
   moved-for stay cannot be justified by speculation over future Supreme Court
   deliberations.”
          Following the five-day evidentiary hearing, the district court issued a
   152-page Ruling and Order granting the Plaintiffs’ motions for a preliminary




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   injunction. Robinson, 

. The district court concluded that
   the Plaintiffs had carried their burden to show “that (1) Louisiana’s black
   population is sufficiently large and compact to form a majority in a second
   district, (2) the black population votes cohesively, and (3) whites tend to vote
   as a bloc usually to defeat black voters’ preferred candidates.” Robinson, 37
   F.4th at 215–16 (citing Thornburg v. Gingles, 

, 50–51 (1986)). The
   district court gave the Legislature until June 20, 2022, to enact a remedial
   plan for the November 2022 election. Id. at 216. Governor Edwards called a
   special session of the Legislature to begin on June 15, 2022, but urged that
   “further action of the legislature should be delayed until the Fifth Circuit can
   review the merits.” Id. at n.1.
          The State appealed the district court’s decision. It also filed a motion
   with the district court to stay the preliminary injunction pending resolution
   of the appeal by this court. The district court denied the stay. The State then
   filed for a stay by this court. After granting a brief administrative stay, this
   court denied the State’s motion for a stay pending appeal. Robinson, 

. The court determined that the State had failed to make a “strong
   showing” of likely success on the merits, and that, further, Purcell v. Gonza-
   les, 

 (2006) (per curiam), did not prevent the injunction from being
   effective. Robinson, 

.
          On June 17, Attorney General Landry filed an application for a stay
   with the Supreme Court, which was granted. Ardoin v. Robinson, 

 (2022). The Court held this case in abeyance pending its Milligan de-
   cision. 

 Argument was heard in November 2022, and an opinion was re-
   leased in June 2023. Milligan, 

. The Supreme Court then vacated
   its stay in this case, allowing the matter to proceed for review in this court.
   Ardoin v. Robinson, 

 (2023). We received supplemental brief-
   ing prior to oral argument. In addition, a separate panel of this court issued
   a writ of mandamus in October 2023, blocking proceedings in district court



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   regarding the preliminary injunction. In re Landry, 

 (5th Cir.
   2023). Though a merits panel is not controlled by an earlier motions panel
   decision, we agree with the ruling that the Louisiana Legislature has time to
   create its own remedial plan. Our decision will give the Legislature an oppor-
   tunity to act or to inform the district court that it will not.
                                    DISCUSSION
          We review a grant of a preliminary injunction by a district court for
   any abuse of discretion. Women’s Med. Ctr. of Nw. Hous. v. Bell, 

,
   418–19 (5th Cir. 2001). A preliminary injunction is an extraordinary remedy
   that will only be issued if a movant establishes four elements:
          (1) a substantial likelihood of success on the merits, (2) a substantial
          threat of irreparable injury if the injunction is not issued, (3) that the
          threatened injury if the injunction is denied outweighs any harm that
          will result if the injunction is granted, and (4) that the grant of an in-
          junction will not disserve the public interest.
   Byrum v. Landreth, 

 (5th Cir. 2009).
          Each of these four elements presents “a mixed question of fact and
   law.” Women’s Med. Ctr., 

. The district court’s legal conclu-
   sions are reviewed de novo, and its factual findings for clear error. 

 A fac-
   tual finding is clearly erroneous when the reviewing court is “left with the
   definite and firm conviction,” after reviewing the entire record, that the dis-
   trict court erred. NAACP v. Fordice, 

, 365 (5th Cir. 2001) (quo-
   tation marks and citations omitted).
          The State raises three issues on appeal which we discuss in this order.
         I.   There is no private right of action under Section 2 of the Voting
              Rights Act.




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        II.      The Plaintiffs did not clearly establish a likelihood of proving that
                 Louisiana’s congressional districts violate Section 2 of the Voting
                 Rights Act.
              In its supplemental briefing following the Milligan decision, the State
   makes four arguments that we consider sub-issues of the second issue:
                     A. The Plaintiffs’ illustrative maps did not satisfy the first Gin-
                         gles precondition.
                     B. The Plaintiffs’ illustrative maps are improper racial gerry-
                         manders where race predominates.
                     C. The Plaintiffs’ illustrative maps did not satisfy the third
                         Gingles precondition.
                     D. Proportionality is an improper factor to consider in a Gin-
                         gles analysis.
       III.      The equities did not warrant a mandatory injunction, and, in light
                 of the fact that the 2022 election has been held, the injunction is
                 moot.
         I.      Private right of action under Section 2 of the Voting Rights Act.
              The parties dispute whether Section 2 can be enforced by private par-
   ties such as the Plaintiffs here. Whether Section 2 provides for a private right
   of action is a legal issue of statutory interpretation that we review de novo. See
   Carder v. Cont’l Airlines, Inc., 

 (5th Cir. 2011).
              There is no cause of action expressly created in the text of Section 2.
   A plurality of the Supreme Court stated that “the existence of the private
   right of action under Section 2 . . . has been clearly intended by Congress
   since 1965.” Morse v. Republican Party of Va., 

 (1996) (plu-
   rality opinion) (citations omitted). The Court acknowledged its prior con-
   sideration of Section 2 violations brought by private litigants. 

 (citing Chi-
   som v. Roemer, 

 (1991); Johnson v. De Grandy, 

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                                    No. 22-30333


   (1994)). More recently, the Court remarked that “the Federal Government
   and individuals have sued to enforce § 2, and injunctive relief is available in
   appropriate cases to block voting laws from going into effect.” Shelby Cnty.
   v. Holder, 

 (2013) (citations omitted).
          At least two justices have expressed concern, perhaps even doubt,
   about a private right. Dissenting in the Milligan decision that led to this re-
   mand, Justice Thomas referred in a footnote to the fact that the majority de-
   clined to “address whether § 2 contains a private right of action, an issue that
   was argued below but was not raised in this Court.” Milligan, 

   n.22 (Thomas, J., dissenting). The footnote was appended to a protest that
   the majority “dismisses grave constitutional questions with an insupportably
   broad holding based on demonstrably inapposite cases.” 

. Similarly,
   Justice Gorsuch wrote a separate concurrence in another case, joined by Jus-
   tice Thomas, solely to “flag” that the Court’s “cases have assumed — with-
   out deciding — that the Voting Rights Act of 1965 furnishes an implied right
   of action under § 2.” Brnovich v. Democratic Nat’l Comm., 

 (2021) (Gorsuch, J., concurring).
          There has not been frequent need in the circuit courts to analyze the
   issue. The Sixth Circuit once held without any analysis that Section 2 con-
   veys a private right of action. See Mixon v. Ohio, 

 (6th Cir.
   1999). The Eleventh Circuit discussed the issue at length and also concluded
   there was a private right of action under Section 2. Alabama State Conf. of
   NAACP v. Alabama, 

, 651–54 (11th Cir. 2020), cert. granted,
   opinion vacated, and case dismissed as moot, 

 (2021). The vaca-
   tion of that opinion raises some questions about its analysis, but the reason
   for vacating was mootness. A dissenting Eleventh Circuit judge argued that
   the Voting Rights Act had not abrogated state sovereign immunity. Alabama
   State Conf., 

 (Branch, J., dissenting). In her dissent, Judge
   Branch rejected one of our precedents — binding on this panel, of course —



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                                         No. 22-30333


   in which we held that the Voting Rights Act had validly abrogated state sov-
   ereign immunity. 

 (discussing OCA-Greater Houston v. Texas, 

 (5th Cir. 2017)).
              We consider most of the work on this issue to have been done by our
   OCA-Greater Houston holding that the Voting Rights Act abrogated the state
   sovereign immunity anchored in the Eleventh Amendment. Congress should
   not be accused of abrogating sovereign immunity without some purpose. The
   purpose surely is to allow the States to be sued by someone. One section of
   the Act provides that proceedings to enforce voting guarantees in any state
   or political subdivision can be brought by the Attorney General or by an “ag-
   grieved person.” 

. We conclude that the Plaintiffs here
   are aggrieved persons, that our OCA-Houston decision has already held that
   sovereign immunity has been waived, and that there is a right for these Plain-
   tiffs to bring these claims.
        II.      Plaintiffs’ likelihood of proving that Louisiana’s congressional districts
                 violate Section 2 of the Voting Rights Act.
              The State challenges the district court’s determination that the Plain-
   tiffs established a likelihood of proving a violation of Section 2 of the Voting
   Rights Act on the merits. The State argues that the preliminary injunction,
   issued in advance of the 2022 congressional elections, is now moot. We will
   consider the mootness issue in the final section of the opinion. We state now
   that we will hold it is not moot but also is unnecessary at this point because
   the balance of the equities has changed.
              Under the first preliminary injunction element, the Plaintiffs were re-
   quired to establish they had a substantial likelihood of success on the merits
   of their Section 2 claim. Byrum, 

. Section 2 claims are evalu-
   ated under the three-part Gingles framework. Milligan, 

. “The
   essence of a § 2 claim is that a certain electoral law, practice, or structure




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   interacts with social and historical conditions to cause an inequality in the
   opportunities enjoyed by black and white voters to elect their preferred rep-
   resentatives.” Gingles, 

.
           To succeed in proving a Section 2 vote dilution claim, plaintiffs must
   first satisfy three preconditions. Milligan, 

. “First, the minor-
   ity group must be sufficiently large and geographically compact to constitute
   a majority in a reasonably configured district.” 

 (quotation marks and ci-
   tations omitted). A district is reasonably configured when it complies “with
   traditional districting criteria, such as being contiguous and reasonably com-
   pact.” 

 Second, the minority group must be politically cohesive. 

   Third, the white majority must be shown to vote sufficiently as a bloc to usu-
   ally defeat the minority-preferred candidate. 

 If a plaintiff fails to establish
   any one of these three preconditions, a court need not consider the other two,
   leaving the plaintiff with no remedy. League of United Latin Am. Citizens v.
   Perry, 

 (2006) [hereinafter LULAC].
           Once these three threshold conditions are established, a plaintiff then
   must “show, under the totality of the circumstances, that the political pro-
   cess is not equally open to minority votes,” causing a Section 2 violation.
   Milligan, 

 (quotation marks and citations omitted). Courts con-
   sider what are sometimes called the Zimmer factors2 to guide this portion of
   the analysis. League of United Latin Am. Citizens, Council No. 4434 v. Clem-
   ents, 

, 849 (5th Cir. 1993). Courts must determine whether

           _____________________
           2
             The United States Senate, in its 1982 Voting Rights Act amendments report,
   referred to the factors identified in this court’s decision in Zimmer v. McKeithen, 

 (5th Cir. 1973), aff’d sub nom. E. Carroll Par. Sch. Bd. v. Marshall, 

 (1976),
   rev’d and remanded sub nom. Marshall v. Edwards, 

 (5th Cir. 1978). See Report,
   Voting Rights Extension, S.R. Rep. 97-417 (1982), 28-29, reprinted in 13449 U.S. CONG.
   SERIAL SET (1982). In 1986, the Gingles Court adopted those factors and a few others to
   consider in vote-dilution cases. Gingles, 

 n.4.




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   plaintiffs have an equal opportunity in the voting process to elect their pre-
   ferred candidate under the challenged districting map. Gingles, 

. If the answer is no, there likely is a Section 2 violation.
          The State does not challenge the second Gingles precondition, so we
   discuss only the other preconditions and the totality of the circumstances.
                 A. The first Gingles precondition.
          The first Gingles precondition focuses on geographical compactness
   and numerosity. Milligan, 

. It establishes whether a minority
   population has the potential to elect its preferred candidate in a single-mem-
   ber district. 

 The “party asserting § 2 liability must show by a preponder-
   ance of the evidence that the minority population in the potential election
   district is greater than 50 percent.” Bartlett v. Strickland, 

, 19–20
   (2009). This percentage is analyzed in terms of the black voting-age popula-
   tion (“BVAP”) because only eligible voters can affect the Gingles analysis.
   Robinson, 605 F. Supp. 3d at 776. The large minority population must also be
   sufficiently compact such that a reasonably compact majority-minority dis-
   trict can be drawn. LULAC, 

. The State does not contest
   numerosity, so we analyze only whether the illustrative map was sufficiently
   compact.
          Compactness under Section 2 is an imprecise concept, but traditional
   districting principles like maintaining communities of interest and traditional
   boundaries should be considered. 

 Communities of interest vary between
   states, generally defined by the given state’s districting guidelines. See Milli-
   gan, 599 U.S. at 20–21. Here, the district court recognized there was no uni-
   versal definition for “community of interest” in Louisiana, and the Louisiana
   Legislature did not define what exactly comprises a community of interest.
   Robinson, 605 F. Supp. 3d at 776, 828. In Milligan, the Supreme Court exam-
   ined the illustrative district maps when deciding whether a “reasonably




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                                      No. 22-30333


   configured” second majority-black district could be formed. Milligan, 599
   U.S. at 19–20. The Court found that some of the illustrative maps produced
   districts at least as compact as the State’s plan. Id. at 20. The Court con-
   cluded that “some of plaintiffs’ proposed maps split the same number of
   county lines as (or even fewer county lines than) the State’s map.” Id. (em-
   phasis in original). In addition, there were no “tentacles, appendages, bizarre
   shapes, or any other obvious irregularities that would make it difficult to
   find” compactness. Id. (quoting Singleton v. Merrill, 

,
   1011 (N.D. Ala. 2022)).
          Courts must also determine if the illustrative districts have similar
   needs and interests beyond race. LULAC, 

. The State insists
   the Plaintiffs’ proposed districts are not reasonably configured because they
   are based solely on race rather than a community of interest. Each illustrative
   plan connects the Baton Rouge area and St. Landry Parish with the Delta
   Parishes far to the north along the Mississippi River. The State argues the
   two areas’ only connection is race. It seems undisputed that unless the part
   of the Baton Rouge area that is majority black is combined with the Delta
   Parishes to the north, creating a second black-majority district would be dif-
   ficult. The State contends this proves the Plaintiffs were operating under the
   “prohibited assumption” that a “group of voters’ race [means] that they
   think alike, share the same political interests, and will prefer the same candi-
   dates at the polls.” 

.
          The State also argues the district court made no finding of common
   interests. The Plaintiffs demographic experts effectively admitted no com-
   munity of interest exists; and the Legislature arrived at its districting plan
   based on resident concerns and its own analysis. The “sprawling size and
   diversity” of the joined communities in the Plaintiffs’ maps allegedly exem-
   plify expansiveness, not compactness.




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          The Plaintiffs contend, however, that the district court was correct
   that the compactness analyzed in the first Gingles precondition is the com-
   pactness of the minority population, not the contested district. Certainly, Milli-
   gan states that the first Gingles precondition is that the “minority group must
   be sufficiently large and [geographically] compact to constitute a majority in
   a reasonably configured district.” Milligan, 

 (quoting Wisconsin
   Legislature v. Wisconsin Elections Comm’n, 

 (2022) (per
   curiam)). The district court heard extensive expert and lay witness testi-
   mony from the Plaintiffs witnesses explaining how the Baton Rouge area and
   the Delta Parishes are communities of interest. Robinson, 605 F. Supp. 3d at
   778–97, 822–31. In its determination, the district court credited this testi-
   mony that Louisiana’s black population is compacted into easily definable ar-
   eas; the illustrative plans offered by the Plaintiffs were more compact on av-
   erage than the enacted plan both mathematically and visually; and the illus-
   trative plans split very few parishes and political subdivisions. 

 at 822–31.
          The State asserts that the Legislature identifies the communities of
   interest, not the courts or parties, and “[t]he Legislature did not arrive at its
   community goals in a vacuum.” The Legislature, the State argues, did not
   intend to combine urban and rural areas differing in poverty, education,
   household income, economic, and other interests into one district with only
   one common index: race. Splitting these already enacted communities of in-
   terest and the sheer distance — 180 miles — between the illustratively joined
   communities negates the possibility of a community of interest when com-
   bining the districts into one.
          The district court found, though, that the State offered no evidence as
   to what the Louisiana Legislature identified as communities of interest. Id.
   at 829. The State produced no witness testimony concerning communities
   of interest. Id. The district court concluded this was “a glaring omission”
   since Joint Rule 21 requires communities of interest to be prioritized over the



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                                          No. 22-30333


   preservation of political subdivisions. Id.; La. Leg. J.R. 21. Instead, the State
   relied on the legislative comments made during the districting plan’s enact-
   ment and ignored the witnesses who testified to the commonalities between
   the areas and communities utilized in the Plaintiffs’ illustrative districting
   plans.3 Id.
           Somewhat similar arguments were rejected by the Supreme Court in
   Milligan, where no clear error existed in separating an already identified dis-
   trict in the Alabama region along the Gulf of Mexico into two different dis-
   tricts. Milligan, 599 U.S. at 20–21. Both the Supreme Court and the Alabama
   district court found testimony by the same expert used in this case supporting
   one community of interest as “partial, selectively informed, and poorly sup-
   ported.” Id. at 21 (quoting Merrill, 582 F. Supp. 3d at 1015). Similarly, here,
   the State asserts that the Legislature intended to keep the communities sep-
   arate, lay testimony at roadshows clearly supported the constituency support
   of the enacted plan, and there was no need to combine clearly distinct urban
   and rural communities of interest.
           The district court determined that these illustrative districts share
   many cultural, economic, social, and educational ties despite the distance and
   distinct community identities. Robinson, 605 F. Supp. 3d at 786–97, 828–31.
   There was unrebutted evidence by the Plaintiffs experts, who utilized road-
   show testimony and socioeconomic data to construct the plans, that there are
   commonalities between the districts. Id. The Plaintiffs further identified the
   desire by some voters to split Baton Rouge from New Orleans and the
           _____________________
           3
             The State does not argue for reversal on the basis that it was given inadequate
   time to prepare its case prior to the issuance of the preliminary injunction. It did make that
   argument to the panel that granted a mandamus stopping the scheduling of a hearing on a
   remedy for the preliminary injunction. In re Landry, 

. The issue not having
   been raised with us, we do not consider it. We are ordering that the district court now
   conduct a trial, allowing any deficiencies in the 2022 hearing to be corrected.




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                                     No. 22-30333


   legislative priority behind combining the rural communities of the Delta Par-
   ishes with East Baton Rouge to protect the common agricultural interests of
   the regions while strengthening “the voice” of the people. The Plaintiffs
   argue this shows the illustrative plans united communities of common inter-
   est, like in Milligan.
          The Supreme Court has recognized that urban and rural communities
   can reasonably be configured into a compact district if they share similar in-
   terests, they are in reasonably close proximity, and if the district is not obvi-
   ously irregular and drawn into “bizarre shapes.” LULAC, 

;
   Milligan, 599 U.S. at 19–21. Even if a region is a single community of interest,
   there is no clear error in a district court’s determination that the illustrative
   plans that focused on other, different, overlapping communities of interest
   are valid; there is no need to conduct a “beauty contest” between the maps.
   Milligan, 

.
          The parties’ arguments here are factual disputes as to whether the dis-
   trict court should have found the illustrative maps reasonably configured.
   The district court evaluated the evidence that described whether the maps
   protected communities of interest for 19 pages in its published opinion. Rob-
   inson, 605 F. Supp. 3d at 778–97. Over another 9 pages, the court made cred-
   ibility determinations on the experts and their evidence. 

 at 822–31. It
   ultimately credited the Plaintiffs’ experts over the State’s, finding the latter’s
   experts’ “analys[e]s lacked rigor and thoroughness,” “did not account for
   all of the relevant redistricting principles,” and provided unhelpful conclu-
   sions. 

 at 824–25 (quoting Anderson v. City of Bessemer City, 

 (1985)).
          We review a district court’s factual findings for clear error. Women’s
   Med. Ctr., 

. Reversal requires us to be “left with [a] definite
   and firm conviction” that the district court erred after reviewing the record.




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                                     No. 22-30333


   Fordice, 252 F.3d at 365. We are left with no such a conviction. The district
   court reviewed the evidence before it and made a factual finding as to what
   the evidence showed, acknowledging throughout its decision the State’s
   omission of contrary testimony. It concluded that the facts and evidence
   demonstrated the Plaintiffs were substantially likely to prove the geographic
   compactness of the minority population. Robinson, 605 F. Supp. 3d at 822.
          There was no clear error by the district court when it found the illus-
   trative maps created a different community of interest and the first Gingles
   precondition was met.
                 B. Racial predominance versus racial gerrymandering.
          To refute the district court’s determination that the Plaintiffs’ satis-
   fied the first Gingles precondition, the State “put all their eggs in the basket
   of racial gerrymandering,” Robinson, 

, and “did not meaning-
   fully refute or challenge [the] Plaintiffs’ evidence.” Robinson, 605 F. Supp.
   3d at 823. How a party addresses an issue at the time that a preliminary in-
   junction is being sought, particularly when a Supreme Court decision is later
   handed down before the next stage of the proceedings, does not bind the
   party as the case moves along further. We do conclude, though, that the
   State’s initial approach was largely rejected by Milligan.
          Impermissible racial gerrymandering can be found when a minority
   population is compacted together and there is “no integrity in terms of tradi-
   tional, neutral redistricting criteria.” Milligan, 

 (quotation
   marks and citations omitted). Here, the Plaintiffs’ evidence of traditional re-
   districting criteria went “largely uncontested.” Robinson, 

.
   Like Alabama in Milligan, the State instead argues that the first Gingles pre-
   condition cannot be established if race predominates the drawing of an illus-
   trative plan in an effort to segregate the races for voting.




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                                      No. 22-30333


          The Supreme Court recognized “a difference ‘between being aware
   of racial considerations and being motivated by them.’” Milligan, 

 (quoting Miller v. Johnson, 

 (1995)). Awareness of race
   is permissible, and redistricting will often require awareness of the de-
   mographics of proposed districts. 

 This “race consciousness does not lead
   inevitably to impermissible race discrimination” because Section 2 demands
   such consideration. 

 (quotation marks and citations omitted). Awareness
   becomes racial predominance when the district lines are drawn with the tra-
   ditional, race-neutral districting criteria considered after the race-based deci-
   sion is made. 

 This is admittedly a difficult distinction. 

 We review the
   district court’s finding as to whether race predominated for clear error.
   Cooper v. Harris, 

, 298–99 (2017).
          The State argues the district court erred in finding that the Plaintiffs’
   plans were not racially predominant configurations. The State relies on a Su-
   preme Court racial affirmative action opinion that recognized distinctions be-
   tween citizens solely based on their ancestry as inherently suspect. Students
   for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 

   (2023).
          The Students for Fair Admissions decision concerned a very different
   set of facts. Drawing a comparison between voting redistricting and affirma-
   tive action occurring at Harvard is a tough analogy. The State contends that
   the Plaintiffs agree predominance occurs when the map-drawer has a specific
   racial target, and that target has a direct, significant impact on the district. It
   argues this is exactly what the Plaintiff experts did when they admitted to
   applying the Bartlett standard, i.e., seeking to create congressional districts in
   which the minority population is greater than 50 percent. Bartlett, 556 U.S.
   at 19–20.




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                                     No. 22-30333


          Certainly, the illustrative plans were designed with the goal of achiev-
   ing a second majority-minority district of at least 50 percent BVAP, and the
   Plaintiff mapmakers sought to satisfy this 50 percent standard when drawing
   the new districts. The 2022 motions panel recognized and the Plaintiff ex-
   pert testified that he was “specifically asked . . . to draw maps with two mi-
   nority-majority districts.” Robinson, 

. The Plaintiffs contend,
   though, that this was simply a consideration of race, not racial predominance.
   The Supreme Court allows race-based redistricting in certain circumstances
   as a remedy for state redistricting maps that violate Section 2. Milligan, 

. The Plaintiffs argue this is one of those circumstances. As we
   will explain, the purpose of illustrative maps is to illustrate that creating an-
   other majority black district is possible, consistent with other requirements
   under Section 2 caselaw.
          The Supreme Court has categorized some districts maps as being
   drafted with race as the predominant factor. See Cooper, 581 U.S. at 300–01.
   In Cooper, the Court found no clear error in the district court’s finding that
   there had been “an announced racial target that subordinated other district-
   ing criteria.” Id. at 300. Refusing to allow redistricting maps based on race
   in any respect, though, would require Gingles to be overruled. Milligan, 599
   U.S. at 30–33. The Supreme Court in Milligan held that expert testimony
   showing redistricting maps were designed to establish two majority-black dis-
   tricts, like the testimony here, does not automatically constitute racial pre-
   dominance. Id. at 32–33. Instead, an express racial target is just one consid-
   eration in a traditional redistricting analysis under Gingles. Id. at 32.
          The Supreme Court also rejected that a “race-neutral benchmark”
   must be used. Id. 23–24. The Court clarified that all illustrative redistricting
   “maps [are] created with an express target in mind — they were created to
   show, as our cases require, that an additional majority-minority district could
   be drawn. That is the whole point of the [Gingles] enterprise.” Id. at 33.



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                                     No. 22-30333


   Thus, the Plaintiffs’ mapmakers using the 50 percent BVAP as a factor when
   drawing the illustrative maps for Louisiana was appropriate.
          The Plaintiffs experts testified to using the 50 percent threshold for
   pulling the black population into the majority-minority district and to con-
   sulting the racial data to determine the location of the black population for
   the district location in the illustrative plans. The State contends this mirrors
   Cooper, where district borders were moved to incorporate the large black pop-
   ulation. The State further argues that racially coded maps presented in the
   current record establish a consistent tracking of racial patterns by the illus-
   trative plans. The higher, black-populated portions of the parishes were
   moved from one district to another to create the majority-minority district
   according to the State.
          The Plaintiffs contend their experts acted appropriately under Su-
   preme Court precedent. The Court recognized that the “very reason a plain-
   tiff adduces a map at the first step of Gingles is precisely because of its racial
   composition” and to demonstrate that a majority-minority district is possi-
   ble. Id. at 34 n.7. Attempting to reach the needed 50 percent threshold does
   not automatically amount to racial gerrymandering, and Cooper does not say
   otherwise. Cooper did not address the first Gingles precondition at all, as its
   focus was racial targeting. Cooper, 

 n.4.
          The district court mentioned that the State’s expert, who testified
   there was racial predominance, conceded he could not say much about the
   racial predominance being the intended result of the expert’s mapping deci-
   sions as opposed to the segregation of the population. Robinson, 605 F. Supp.
   3d at 824. The district court therefore found the expert’s reliability severely
   undermined. Id. at 823–24. The Alabama district court also gave his similar
   testimony in Milligan little weight. Milligan, 599 U.S. at 31–32. The Plaintiff
   experts testified they did not subordinate other redistricting criteria to race.




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                                          No. 22-

 F.4th at 223. Instead, their determinations and analysis were
   based on the traditional factors like communities of interest, and race was
   only considered “to the extent necessary” under Gingles. Id.; Robinson, 605
   F. Supp. 3d at 827.
           The State attempts to equate an Equal Protection racial gerrymander-
   ing claim to its Section 2 Voting Rights Act claim to overcome the racial
   awareness that Gingles allows. “Racial gerrymandering is prohibited by the
   Equal Protection Clause of the Fourteenth Amendment.” Robinson, 

 (citations omitted). Racial consciousness as a factor in the drawing of
   illustrative maps does not, however, defeat a Section 2 Gingles claim, which
   is distinct from an Equal Protection racial gerrymander violation. Id.4
           A racial gerrymander is present when citizens are assigned by the state
   to legislative districts based on race, such that one district will have racially
   similar individuals who otherwise have little in common geographically or po-
   litically. 

 The Supreme Court has implemented a high bar to racial gerry-
   mander challenges, requiring a showing of racial predominance such that tra-
   ditional redistricting criteria are subordinate to the racial consideration. 

   We find that this high bar was not met on this record. Rather, race was
   properly considered by the Plaintiff experts when drawing their several illus-
   trative maps. The target of reaching a 50 percent BVAP was considered
   alongside and subordinate to the other race-neutral traditional redistricting
   criteria Gingles requires. The Plaintiff experts considered communities of in-
   terest, political subdivisions, parish lines, culture, religion, etc. 

 at 219–23.

           _____________________
           4
              The Equal Protection Clause of the Fourteenth Amendment can only be violated
   when there is state action. U.S. Const. amend. XIV, § 1. Although the Plaintiffs’
   illustrative maps were not state action and do not constitute an Equal Protection violation,
   a legislatively enacted map would be subject to Equal Protection review. Robinson, 605 F.
   Supp. at 836. Thus, we discuss the Equal Protection implications.




                                               22
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                                      No. 22-30333


          The district court did not clearly err in its factual findings that the il-
   lustrative maps were not racial gerrymanders.
                  C. The third Gingles precondition.
          The third Gingles precondition focuses on racially polarized voting; it
   requires establishing the plausibility that the challenged legislative districting
   thwarts minority voting on account of race. Milligan, 

. This
   precondition requires proof that white bloc voting “can generally minimize
   or cancel black voters’ ability to elect” their preferred candidate. Gingles,
   

. The question is not whether white bloc voting is present, but
   whether such bloc voting in a given district amounts to legally significant ra-
   cially polarized voting. Id.; Clements, 999 F.2d at 850.
          The State contends this precondition also requires proof that a white
   voting bloc will normally defeat a combined minority vote and white “cross-
   over” voting. A white crossover district is created where enough white vot-
   ers join minority voters to elect the minority-preferred candidate. Bartlett,
   

. In other words, the BVAP is less than 50 percent but large
   enough to elect the candidate of its choice with white voters’ help. 

.
   The Supreme Court has recognized that “a white bloc vote that normally will
   defeat the combined strength of minority support plus white ‘crossover’
   votes rises to the level of legally significant white bloc voting.” Gingles, 

. The State argues, however, the Plaintiffs presented evidence of
   statistical significance rather than legal significance.
          The State argued, and the district court accepted, that there is a dif-
   ference between legally significant and statistically significant racially polar-
   ized voting. Robinson, 605 F. Supp. 3d at 842–44. Such a distinction was
   made by a district court when examining legislative redistricting. Covington
   v. North Carolina, 

 (M.D.N.C. 2016), summary aff’d, 

 (2017). We also find the concept in Gingles, where the court




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                                     No. 22-30333


   questioned the statistical evidence that voters of different races select differ-
   ent candidates, and whether that evidence was “substantively significant.”
   Gingles, 

. The Court then examined the standard for “legally
   significant racial bloc voting.” 

. It stated that “[t]he purpose of in-
   quiring into the existence of racially polarized voting is twofold: to ascertain
   whether minority group members constitute a politically cohesive unit and to
   determine whether whites vote sufficiently as a bloc usually to defeat the mi-
   nority's preferred candidates.” 

.
          The State argues the third Gingles precondition cannot be satisfied in
   the relevant geographical areas because there is sufficient white crossover
   voting. The Plaintiffs experts testified that effective crossover voting could
   exist because a different district than the Legislature drew could be drawn
   with less than 50 percent BVAP and still allow for a minority-preferred can-
   didate to be elected. The experts did not testify that the legislative plan
   would allow sufficient cross-over voting. All Plaintiff experts saw a possibil-
   ity that districts could be drawn below the required BVAP when combined
   with sufficiently high levels of white crossover voting. The State contends
   that an effective crossover district with a BVAP less than 50 percent, like
   those testified to by the Plaintiff experts, which “could perform [is] tanta-
   mount to a concession that white bloc voting is not legally significant.” The
   State argues this is an admission that no remedy is necessary and that the
   third Gingles precondition could not be satisfied.
          The district court did not state that crossover voting was irrelevant. It
   explained that such voting was inherently included in the Plaintiffs experts’
   analyses. Robinson, 605 F. Supp. 3d at 843. The 2022 motions panel of this
   court explained that the district court correctly relied on the experts to ex-
   plain the level of crossover voting. Robinson, 

. Regardless, the
   State argues the possibility of effective white crossover districts means (1) the
   third Gingles precondition cannot be established, (2) two majority-minority



                                          24
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                                     No. 22-30333


   districts are unnecessary for black voters to elect their preferred candidates,
   (3) Louisiana is barred from drawing one, and (4) it would be unlawful to re-
   quire the Louisiana Legislature to enact a second majority-minority district.
          The Plaintiffs are correct that this argument focuses on the wrong
   plan. Rather than follow Supreme Court precedent that requires sufficient
   crossover voting in the Legislature’s plan — and no such evidence existed
   here — the State focused on the possibility of creating new districts with
   crossover voting. The relevant consideration under the third Gingles precon-
   dition is the challenged plan, not some hypothetical crossover district that
   could have been but was not drawn by the Legislature. Robinson II, 

. The third Gingles precondition’s purpose is to establish that the chal-
   lenged district thwarts a distinctive minority vote. Milligan, 

.
   While the illustrative plans do have the potential to allow for the minority-
   preferred candidates to be elected with less than a 50 percent BVAP, the leg-
   islative plan did not. Robinson I, 605 F. Supp. at 841–42. The record estab-
   lishes that minority-preferred candidates will usually fail in Louisiana with-
   out a different district configuration.
          Bartlett established the 50 percent BVAP threshold for the first Gin-
   gles precondition, but it did not change the third precondition analysis. Bart-
   lett, 

. Illustrative districts that could perform with a
   BVAP of less than 50 percent with white crossover voting are not the focus
   of the third Gingles precondition analysis. The proper question to ask is this:
   “If the state’s districting plan takes effect, will the voting behavior of the
   white majority cause the relevant minority group’s preferred candidate ‘usu-
   ally to be defeated’?” Robinson, 

 (citing Covington, 

). The district court’s factual findings confirmed the answer under the
   2022 state-enacted plan — not the hypothetical districts — would be “yes”
   because the experts examined the data and concluded that white voters




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                                     No. 22-30333


   consistently vote to defeat minority-preferred candidates. Robinson, 605 F.
   Supp. 3d at 842–43. This is the proper analysis.
          The Supreme Court examined similar evidence of racially polarized
   voting under the third Gingles precondition in Milligan. 

. The
   Court analyzed a white crossover voting percentage of 15.4, 

 and, here, the
   district court analyzed a range of 11.7 percent to 20.8 percent. Robinson, 605
   F. Supp. at 842. The Supreme Court agreed with the Alabama district
   court’s factual determination that the third Gingles precondition was met de-
   spite the crossover percentage. Milligan, 599 U.S. at 22–23.
          The State argues the district court applied the wrong legal standard by
   finding the white crossover information irrelevant, but, as we have discussed,
   the district court did no such thing. Rather, it focused on expert testimony
   that included an analysis of crossover voting. Effective crossover voting can
   be evidence of diminished bloc voting under the third Gingles precondition.
   Bartlett, 556 U.S. at 16–17. The analysis, however, of whether white crosso-
   ver voting undermines the potential of electing minority-preferred candi-
   dates is properly determined under the first Gingles precondition, not the
   third. Id. at 16–20. It dictates the answer to the question of whether a minor-
   ity makes up a sufficient BVAP in the relevant geographic area, not solely
   whether white bloc voting is legally significant. Id.
          We conclude that Bartlett’s discussion of crossover voting and how a
   Section 2 violation will generally not be found if effective crossover voting is
   present was limited to the first Gingles precondition analysis. The district
   court’s factual determination that a white crossover voting range of 11.7 per-
   cent to 20.8 percent can satisfy the third Gingles precondition aligns with Mil-
   ligan. We find no clear error in the district court’s determination about cross-
   over voting and move to the totality of the circumstances analysis.




                                         26
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                                      No. 22-30333


                  D. Totality of the circumstances & proportionality.
          The State’s final argument that the district court erred in its Gingles
   analysis is its consideration of racial proportionality as a factor. Once the
   Gingles preconditions are achieved, Section 2 liability is determined based on
   the totality of the circumstances. Milligan, 

. This requires ap-
   plication of the Gingles analysis specifically to the facts of each case and the
   state electoral mechanism while also considering the Zimmer factors as a
   guide. 

; Clements, 999 F.2d at 849.
          While not dispositive, one relevant Zimmer factor is proportionality.
   Johnson, 

. “[W]hether the number of districts in which the
   minority group forms an effective majority is roughly proportional to its share
   of the population in the relevant area” is a “relevant consideration” for
   courts to make. LULAC, 

. “The Gingles framework itself
   imposes meaningful constraints on proportionality,” and “[f]orcing propor-
   tional representation is unlawful and inconsistent with” Section 2. Milligan,
   

. The Supreme Court has repeatedly “rejected districting
   plans that would bring States closer to proportionality when those plans vio-
   late traditional districting criteria.” 

 at 29 n.4.
          The State contends the Supreme Court in Milligan found no constitu-
   tional or Section 2 concerns because the proportional representation had
   been rejected as a factor. The State argues the opposite occurred here: the
   district court read a proportionality requirement into Gingles.
          The Plaintiffs did emphasize that the black population is one-third of
   Louisiana’s residential population, yet it has only one out of six opportunities
   to elect their preferred candidates. The district court, according to the State,
   “adopted this line of argument” and held that the black representation was
   not proportional to the black population. The State argues this holding will




                                           27
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                                     No. 22-30333


   amount to unlawful, forced proportional representation, which cannot be the
   basis for Section 2 relief.
          The Plaintiffs assert the district court was not forcing proportional
   representation but was weighing proportionality in the totality of the circum-
   stances required under Gingles. The district court identified the dispropor-
   tional representation, weighing it in favor of the Plaintiffs throughout its anal-
   ysis. Robinson, 605 F. Supp. 3d at 851. The Plaintiffs contend there was no
   forced racial proportionality, and argue Milligan rejected the same argument
   that an additional majority-minority district inevitably demands proportion-
   ality. See Milligan, 

. The Supreme Court determined that if a
   proper Gingles analysis results in proportional representation — like here and
   in Milligan — the plan is not automatically invalid or clearly erroneous. See
   

 at 26–30.
          The district court considered proportionality only in its Zimmer-fac-
   tors analysis. Robinson, 605 F. Supp. 3d at 844–51. The court did not require
   proportionality but considered it along with the other factors in examining
   the totality of circumstances. Id. at 771. The court recognized there is no
   right to proportional representation. Id. at 851. Instead, proportionality is a
   relevant consideration and indication of equal opportunity voting, which it
   found relevant to this case. Id. The district court determined the black rep-
   resentation was not proportional to the black population, and this factor
   weighed in favor of the Plaintiffs. Id.
          The Supreme Court has held that proportionality cannot be at the ex-
   pense of “integrity in terms of traditional, neutral redistricting criteria.” Mil-
   ligan, 

 (citations omitted). Here, the district court analyzed
   proportionality as a factor among other redistricting criteria. Robinson, 605
   F. Supp. 3d at 851. The district court found “that the proportionality




                                             28
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                                    No. 22-30333


   consideration weighs in favor of Plaintiffs” and that “the totality of the cir-
   cumstances weighs in favor of Plaintiffs.” Id. (emphasis added).
          We agree with the 2022 motions panel that the Plaintiffs’ arguments
   “are not without weaknesses,” Robinson, 

, and Plaintiffs’ anal-
   ysis is not “entirely watertight.” 

. There is nothing unusual about
   weaknesses, even in arguments of a successful party. This appeal, however,
   primarily disputes factual findings that are not clearly erroneous.
          The district court spent 39 pages in the published opinion discussing
   the evidence presented and expert testimony heard during its five-day evi-
   dentiary hearing, Robinson, 605 F. Supp. 3d at 778–817, and 41 pages analyz-
   ing those facts and legal authority. 

 at 817–858. The district court came to
   the same conclusion as the Alabama district court that was affirmed in Milli-
   gan, based on “essentially the same” record and arguments.
          The Supreme Court’s Milligan opinion may require the State here to
   adjust its arguments as the case moves to its next phase. We conclude the
   emphasis so far has been on the supposed invalidity of any consideration of
   race and a rejection of the Gingles approach. The Milligan opinion refused to
   accept such arguments. Among the similar arguments in Milligan and here is
   that the plaintiffs’ illustrative maps were unreasonably configured due to
   their division of a cognizable community population into two different dis-
   tricts; the district court should have judged the enacted map against a race-
   neutral benchmark calculated by a computer-simulated map; the possibility
   of drawing a majority-minority district does not require the drawing of the
   district; and the district court’s application of Section 2 encourages racial
   gerrymandering since the Plaintiffs incorporate race into their illustrative
   plans. Milligan, 

. Most of the arguments the State made here were
   addressed and rejected by the Supreme Court in Milligan.




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                                        No. 22-30333


              The district court’s preliminary injunction, like the one issued by Al-
   abama, was valid when it was issued. Now, almost 17 months later, we need
   to consider whether the preliminary injunction is still needed.
       III.      The balance of equities and mootness of the preliminary injunction.
              The State disputes the balance the district court struck in the equities
   of the case, arguing that a preliminary injunction was not the proper remedy
   because it did not simply preserve the status quo. Unfortunately for that ar-
   gument, the Supreme Court approved a similar preliminary injunction in Mil-
   ligan. 

              The State’s initial concern with the preliminary injunction was that it
   was issued too close to the election. See Purcell, 

. Both this court
   and the Supreme Court have applied the Purcell principle against changing
   state election rules when staying injunctions that threaten voter confusion
   and chaos so near an election. Robinson, 37 F.4th at 228–29.
              Purcell stayed an election 29 days prior to an election, and the Supreme
   Court has stayed injunctions five days, 33 days, 60 days, and less than four
   months before an election. Id. at 229 (citations omitted). Here, the injunc-
   tion was implemented more than five months prior to the election and more
   than four months prior to early voting registration. It is not “an injunction
   entered days or weeks before an election — when the election is already un-
   derway,” which would require a Purcell stay. Id. at 228.
              The district court recognized that even the State acknowledged the
   injunction deadline would present no difficulties for Louisiana’s election cal-
   endar, and the deadlines that impact voters were not until October. Robinson,
   605 F. Supp. 3d at 854 (citing Petition for Injunction and Declaratory Relief,
   Bullman v. Ardoin, No. C–716690, 

 (La. Dist. Ct. Mar. 10,
   2022) (the pending state court petition regarding the same issue)). Further,
   Secretary Ardoin’s counsel stated that “Louisiana does not have a hard




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                                    No. 22-30333


   deadline for redistricting,” and the election code can be amended if neces-
   sary. 

 at 854–55.
          We agree that Purcell did not bar the preliminary injunction nor re-
   quire it to be stayed.
          Where are we now, though? The reasons for urgency in the district
   court’s 2022 preliminary injunction are gone. The district court issued the
   injunction after determining the Plaintiffs were likely to suffer irreparable
   harm under the enacted redistricting plan. Robinson, 605 F. Supp. 3d at 851–
   52. It further concluded that, if the 2022 elections were “conducted under a
   map which has been shown to dilute Plaintiffs’ votes, Plaintiffs’ injury will
   persist unless the map is changed for 2024.” 

. None of that applies
   now, though there are new deadlines on the somewhat distant horizon.
          The State would have the preliminary injunction declared moot. To
   avoid mootness, “the controversy posed by the plaintiff’s complaint [must]
   be live . . . throughout the litigation process.” Rocky v. King, 

 (5th Cir. 1990). “Mootness is a jurisdictional question” that must be
   resolved prior to a federal court having jurisdiction. North Carolina v. Rice,
   

 (1971) (citations omitted).
          The Supreme Court’s affirmance of the Alabama district court’s al-
   most identical preliminary injunction six months after the affected election
   might be useful precedent, but the Court did not address the possibility of
   mootness. Milligan, 

. The irreparable harm articulated by both the
   Alabama district court and this district court is that forcing black voters to
   vote under a map that likely violates Section 2 is a continuing and live injury,
   despite the loss of some of the urgency. Merrill, 582 F. Supp. 3d at 1026–27;
   Robinson, 605 F. Supp. 3d at 851–52. Both district courts made factual find-
   ings that the plaintiffs would have ongoing and irreparable harm that will




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                                     No. 22-30333


   persist unless the map is changed. 

 That harm is still present, but a trial
   can likely occur prior to harm occurring in the 2024 elections.
          We conclude that a preliminary injunction is no longer needed to pre-
   vent an irreparable injury from occurring before said trial. Our conclusion
   comes from the balance of the equities no longer weighing in favor of the
   Plaintiffs. Once an “election occurs, there can be no do-overs and no re-
   dress” for voters whose votes were diluted. League of Women Voters of N.C.
   v. North Carolina, 

 (4th Cir. 2014). Like the Alabama vot-
   ers, “[t]he Plaintiffs already suffered this irreparable injury . . . when they
   voted in 2022 under the unlawful” plan. Singleton v. Allen, 2:21-CV-1291-
   AMM, 

, at *18 (N.D. Ala. Oct. 5, 2023). The Louisiana
   elections are on a more lenient time schedule than Alabama’s. Both general
   elections are more than 13 months away, but Alabama’s qualifying deadline
   to participate in the 2024 elections is in November 2023. Id.; Ala. Code § 17–
   13–5(a).
          For the 2024 Louisiana elections calendar, though, there is no immi-
   nent deadline. The qualifying deadlines are not until July 2024, so a prelim-
   inary injunction, which is an extraordinary remedy, is no longer required to
   prevent the alleged elections violation. We therefore vacate the preliminary
   injunction, even though the underlying controversy is not moot.
          IV. The role of the Louisiana Legislature.
          There is not much time before initial deadlines for the next congres-
   sional election cycle are visible. Nonetheless, we have weighed carefully one
   of the arguments the State made at the Supreme Court in defending the man-
   damus ruling by this court. It was a complaint that the district court had not
   “afforded the legislature with a meaningful opportunity” to prepare a reme-
   dial plan. Resp. to Emergency Appl. for Stay of Writ of Mandamus at 15,
   Galmon v. Ardoin, No. 23A282 (U.S. filed Sept. 30, 2023). The State




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   acknowledged the Louisiana Legislature would not likely act “while seeking
   to demonstrate that the district court was wrong to conclude that the Plain-
   tiffs’ are entitled to a remedy.” Id. at 16. The Plaintiffs’ reply to that argu-
   ment was to insist the Legislature clearly stated it did not want to reconsider
   its map. It quoted House Speaker Clay Schexnayder as saying a new session
   was “unnecessary and premature until the legal process is played out in the
   court systems.” Reply Br. in Supp. of Emergency Appl. for Stay of Writ of
   Mandamus at 3, Galmon v. Ardoin, No. 23A282 (U.S. filed Oct. 11, 2023).
          The State’s argument to the Supreme Court, though, was in the con-
   text of upholding the mandamus that prevented another hearing on the pre-
   liminary injunction. We do not interpret the State to have declared that after
   this court made a decision on the appeal from the preliminary injunction —
   that decision is made today — the Louisiana Legislature would not want to
   consider acting.
          We cannot conclude on this record that the Legislature would not take
   advantage of an opportunity to consider a new map now that we have af-
   firmed the district court’s conclusion that the Plaintiffs have a likelihood of
   success on the merits. Federalism concerns are heightened in the present
   context: “even after a federal court has found a districting plan unconstitu-
   tional, ‘redistricting and reapportioning legislative bodies is a legislative task
   which the federal courts should make every effort not to preempt.’” McDan-
   iel v. Sanchez, 

, 150 n.30 (1981) (quoting Wise v. Lipscomb, 

 (1978) (opinion of White, J.)).
          The Court’s continuous urging of caution convinces us to allow the
   Louisiana Legislature until January 15, 2024, to enact a new congressional
   redistricting plan. The State has not formally requested that opportunity, so
   we direct counsel for the defendant state officials to inform the district court
   if they become aware that no special session of the Legislature will be called




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                                     No. 22-30333


   for this purpose or, if called, it becomes clear no new map will be approved.
   We anticipate that counsel for the defendant state officials, as officers of the
   court, will act in good faith and inform the district court of either as soon as
   possible.
                                  CONCLUSION
          The district court is to conduct no substantive proceedings until the
   earliest of (1) the completion of legislative action, (2) notice indicating the
   Legislature will not create new districts, or (3) January 15, 2024. Should the
   Legislature be considering adopting a new map at that deadline, the district
   court has discretion to provide modest additional time, though not of such
   length as to prevent the district court from timely completing its work. The
   district court is not prevented by our opinion from conducting proceedings
   to schedule future proceedings. This court’s panel that ruled on the manda-
   mus directed further scheduling in the case had to be “pursuant to the prin-
   ciples enunciated herein.” In re Landry, 

. We wish to avoid
   potential confusion from directives from two panels of our court if any differ-
   ences are perceived, though we see none. Future district court scheduling
   needs to follow only the guidance established in this opinion.
          If the Legislature adopts a new districting plan and it becomes effec-
   tive, then that map will be subject to any challenge these Plaintiffs bring. If
   no new plan is adopted, then the district court is to conduct a trial and any
   other necessary proceedings to decide the validity of the H.B. 1 map, and, if
   necessary, to adopt a different districting plan for the 2024 elections. The
   parties can advise the district court as to the necessary timing for completion
   of such a trial, with allowance for the time for appellate review.
          Preliminary injunction VACATED and cause REMANDED to
   district court for proceedings consistent with this opinion.




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