Amicus Curiae Brief — Robert A. Rucho, et al., Appellants v. Common Cause, et al.

No. 17A745

In the

Supreme Court of the United

States

ROBERT RUCHO, ET AL.,

Applicants,

v.

COMMON CAUSE, ET AL.,

Respondents.

On Emergency Application for Stay of Order

Invalidating Congressional Districts Pending Appeal to the

Supreme Court of The United States

MOTION FOR LEAVE TO FILE AMICUS BRIEF, MOTION

FOR LEAVE TO FILE BRIEF ON 8 1/2 BY 11 INCH PAPER,

AMICUS BRIEF FOR PRESIDENT PRO TEMPORE OF THE

PENNSYLVANIA SENATE, SENATOR JOSEPH SCARNATI AS

AMICUS CURIAE IN SUPPORT OF APPLICANTS

To the Honorable John G. Roberts, Jr.

Chief Justice of the United States and

Circuit Justice for the Fourth Circuit

Jason Torchinsky

*Counsel of Record

Shawn Sheehy

HOLTZMAN VOGEL JOSEFIAK

TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, Virginia 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

Email: jt@hvjt.law

Ssheehy@hvjt.law

Attorneys for Amicus Curiae

Senator Joseph B. Scarnati, III

Brian S. Paszamant

Jason A. Snyderman

John P. Wixted

BLANK ROME LLP

One Logan Square

130 N. 18th Street

Philadelphia, Pennsylvania 19103

Phone: (215) 569-5791

Fax: (215) 569-5555

Email: Paszamant@blankrome.com

Snyderman@blankrome.com

JWixted@blankrome.com

Attorneys for Amicus Curiae

Senator Joseph B. Scarnati, III

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

MOTION FOR LEAVE TO FILE AN AMICUS BRIEF ...............................................1

MOTION FOR LEAVE TO FILE BRIEF ON 8 ½ BY 11 INCH PAPER .....................4

INTEREST OF AMICUS CURIAE ................................................................................5

ARGUMENT ...................................................................................................................7

I.

THE COURT HAS NOT OFFERED A CLEAR, JUDICIALLY

MANAGEABLE STANDARD TO EVALUATE PARTISAN

GERRYMANDERING CLAIMS............................................................................7

II.

THE RAPID DESTABILIZATION OF PARTISAN

GERRYMANDERING JURISPRUDENCE ..........................................................9

III. IN THE ABSENCE OF CLEAR GUIDANCE, LOWER COURTS

WILL CREATE AND IMPOSE MULTIPLE, CONFLICTING

TESTS TO EVALUATE PARTISAN GERRYMANDERING

CLAIMS................................................................................................................ 12

IV. DENIAL OF A STAY PREJUDICES OTHER STATES,

LEGISLATORS AND VOTERS .......................................................................... 15

CONCLUSION ............................................................................................................. 17

CERTIFICATE OF SERVICE ..................................................................................... 19

i

TABLE OF AUTHORITIES

CASES

Agre v. Wolf, No. 17-cv-04392 (E.D. Pa. Jan. 10, 2018) (ECF 210-213) ........... 5, 10, 16

Ala. Legislative Black Caucus v. Alabama, No. 12-691, 12-1081, 2017

U.S. Dist. LEXIS 168741 (M.D. Ala. Oct. 12, 2017) ........................................... 10

Ala. Legislative Black Caucus v. Alabama, 988 F. Supp. 2d 1285 (M.D.

Ala. 2013) ...............................................................................................................8

Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (D. Md. Aug. 24,

2017) .............................................................................................................6, 9, 10

Common Cause v. Rucho, No. 16-1026, 16-1164, 2017 U.S. Dist. LEXIS

145590 (M.D.N.C. Sept. 8, 2017) ................................................................. passim

Cooper v. Harris, 137 S. Ct. 1455 (2017) ............................................................... 12, 13

Davis v. Bandemer, 478 U.S. 109 (1986) ....................................................... 7, 8, 15, 16

Diamond v. Torres, No. 17-5054 (E.D. Pa. Nov. 9, 2017) ........................................ 6, 11

Erfer v. Commonwealth, 794 A.2d 325 (Pa. 2002) ...................................................... 16

Gaffney v. Cummings, 412 U.S. 735 (1973) ............................................................. 7, 12

Ga. State Conference of the NAACP v. Brian Kemp, No. 17-1427 (N.D.

Ga. April 24, 2017) ............................................................................................... 10

Gill v. Whitford, 137 S. Ct. 2268 (2017) ................................................................ 2, 6, 9

Growe v. Emison, 507 U.S. 25 (1993).............................................................................7

League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) .............................8

League of Women Voters v. Commonwealth, No. 159 MM 2017 (Pa.

Jan. 17, 2018) ................................................................................................... 5, 11

League of Women Voters of Mich. v. Johnson, 17-14148 (E.D. Mich.

Dec. 22, 2017) ....................................................................................................... 10

Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992) ......................................................... 14

ii

Purcell v. Gonzalez, 549 U.S. 1 (2006) ......................................................................... 17

Raleigh Wake Citizens Ass'n v. Wake Cnty. Bd. of Elections, 827 F.3d

333 (4th Cir. 2016) .................................................................................................8

Republican Party of North Carolina v. Martin, 980 F.2d 943 (4th Cir.

1992) .....................................................................................................................14

Shapiro v. McManus, 203 F. Supp. 3d 579, 594 (D. Md. 2016) ....................................8

Shaw v. Reno, 509 U.S. 630 (1993) .............................................................................. 13

Texas Democratic Party v. Abbot,

No. 17-680 (U.S. Nov. 6, 2017). …………………………………… ........................ 11

Vieth v. Jubelirer, 541 U.S. 267 (2004) .......................................................... 7, 8, 12, 15

Washington v. Finlay, 664 F.2d 913 (4th Cir. 1981) ................................................... 14

Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) ..................................... passim

CONSTITUTION

U.S. Const. art. I, § 4 ......................................................................................................7

iii

MOTION FOR LEAVE TO FILE AN AMICUS BRIEF

Following the decision of a divided three-judge panel of the U.S.

District Court for the Western District of Wisconsin in Whitford v. Gill, 218

F. Supp. 3d 837 (W.D. Wis. 2016), which dramatically upset at least 30 years

of this Court’s precedent regarding partisan gerrymandering claims, a

number of other plaintiffs, including the ones here, filed a flurry of similar

challenges to state and congressional district maps across this country in the

hope of affecting the 2018 congressional elections. This is the case in

Pennsylvania.

Currently

pending

are

three

separate

legal

challenges

to

Pennsylvania’s congressional districts: one before the Supreme Court of

Pennsylvania; one before the U.S. District Court for the Eastern District of

Pennsylvania; and the third to arrive shortly before this Court.1

Amicus Curiae, Senator Scarnati is a defendant in all three of these

pending cases. Additionally, as the leader of the Pennsylvania Senate,

Senator Scarnati would be directly involved in drafting new redistricting

1 In Agre v. Wolf, No. 17-04392, slip op. (E.D. Pa. Jan. 10, 2018) (three-judge

court) (ECF 210-213), a divided three-judge court ruled against the plaintiffs,

rejecting their partisan gerrymandering claims and awarding judgment to

defendants, including defendant Senator Joseph B. Scarnati, III (“Senator

Scarnati”), the President Pro Tempore of the Pennsylvania Senate. Plaintiffs

have indicated they will file a jurisdictional statement to this Court in the

near future. Senator Scarnati, along with his co-defendant, Michael C.

Turzai, Speaker of the Pennsylvania House of Representatives will also file a

jurisdictional statement challenging the three-judge panel’s legislative

privilege ruling.

1

legislation, should any of these three cases result in the invalidation of

Pennsylvania’s congressional map.

The substantial legal uncertainty created by numerous, conflicting

lower court decisions and the temporary absence of clear guidance from this

Court have prejudiced Senator Scarnati as a defendant—to defend himself

and the work of the Pennsylvania legislature based on a known, clear, and

fixed standard, and may seriously prejudice Senator Scarnati as a

legislator—in his ability to draft congressional redistricting legislation based

on a known, clear, and fixed standard. Moreover, the timing of these

challenges, facilitated by lower courts’ disregard of the import of this Court’s

stay in Gill v. Whitford, 137 S. Ct. 2289 (2017), places at risk the orderly

administration

of

the

impending

2018

congressional

elections

in

Pennsylvania as well as in other states.

Accordingly, Senator Scarnati respectfully requests leave to file this

amicus brief to articulate to the Court the importance, to other litigants and

lawmakers across this country, of granting the Applicants’ stay application.

Granting this stay while this Court addresses the partisan gerrymandering

cases that are already pending before it will foster stability in the uncertain

legal landscape by sending a clear message to lower courts that they should

stay their hands while they await this Court’s valuable guidance. This

stability will permit Senator Scarnati to appropriately defend himself in state

and federal court against a standard that is known, clear, and fixed.

2

Additionally, in the event that a Pennsylvania court orders congressional

districts redrawn, Senator Scarnati will be able to properly exercise his

constitutionally vested role in drafting redistricting legislation.

Senator Scarnati therefore moves this Court for leave to file an amicus

brief in support of the Emergency Application for Stay.

Respectfully submitted on this 16th day in January, 2018.

_____________________

Jason Torchinsky

*Counsel of Record

Shawn Sheehy

HOLTZMAN VOGEL JOSEFIAK

TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, Virginia 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

Email: jt@hvjt.law

Ssheehy@hvjt.law

Attorneys for Amicus Curiae

Senator Joseph B. Scarnati, III

/s/ Brian S. Paszamant

Brian S. Paszamant

Jason A. Snyderman

John P. Wixted

BLANK ROME LLP

One Logan Square

130 N. 18th Street

Philadelphia, Pennsylvania 19103

Phone: (215) 569-5791

Fax: (215) 569-5555

Email: Paszamant@blankrome.com

Snyderman@blankrome.com

JWixted@blankrome.com

Attorneys for Amicus Curiae

Senator Joseph B. Scarnati, III

3

MOTION FOR LEAVE TO FILE BRIEF ON 8 ½ BY 11 INCH PAPER

The

North

Carolina

legislature’s

deadline

for

redrawing

its

congressional districts, January 24, 2018, is imminent. See Common Cause v.

Rucho, Nos. 16-1026, 16-1164, slip op. at 189 (M.D.N.C. Jan. 9, 2018) (threejudge court). Recognizing this, this Court has expedited briefing and ordered

plaintiffs to respond to Applicants’ Emergency Application for Stay by

Wednesday, January 17, 2018. Because of the urgency and importance of this

matter, Senator Scarnati moves this Court for permission to file this short

brief on 8 ½ by 11 inch paper.

Respectfully submitted on this 16th day in January, 2018.

_____________________

Jason Torchinsky

*Counsel of Record

Shawn Sheehy

HOLTZMAN VOGEL JOSEFIAK

TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, Virginia 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

Email: jt@hvjt.law

Ssheehy@hvjt.law

/s/ Brian S. Paszamant

Brian S. Paszamant

Jason A. Snyderman

John P. Wixted

BLANK ROME LLP

One Logan Square

130 N. 18th Street

Philadelphia, Pennsylvania 19103

Phone: (215) 569-5791

Fax: (215) 569-5555

Email: Paszamant@blankrome.com

Snyderman@blankrome.com

JWixted@blankrome.com

Attorneys for Amicus Curiae

Senator Joseph B. Scarnati, III

Attorneys for Amicus Curiae

Senator Joseph B. Scarnati, III

4

INTEREST OF AMICUS CURIAE2

Amicus curiae, Senator Joseph Scarnati, III (“Senator Scarnati”), in his

official capacity as President Pro-Tempore of the Pennsylvania Senate, is a

defendant in three separate partisan gerrymandering lawsuits aimed at

invalidating Pennsylvania’s congressional districting plan before the 2018

elections. One is pending before the Supreme Court of Pennsylvania, League

of Women Voters v. Commonwealth, No. 159 MM 2017 (Pa. Jan. 17, 2018)

(oral argument scheduled). Another before a three-judge panel of the U.S.

District Court for the Eastern District of Pennsylvania just ended with

judgment in favor of the defendants. See Agre v. Wolf, No. 17-cv-04392, slip

op. (E.D. Pa. Jan. 10, 2018) (ECF 210-213). Both plaintiffs, and Senator

Scarnati and his co-defendant, Michael C. Turzai, in his official capacity as

the Speaker of the Pennsylvania House of Representatives (collectively,

“legislative defendants”), in that case have indicated publicly that they will

appeal the judgment with respect legislative privilege rulings issued by the

E.D. Pa to this Court. A third is pending before another three-judge panel of

the U.S. District Court for the Eastern District of Pennsylvania. See Diamond

2 No

counsel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than amicus curiae

made a monetary contribution to its preparation or submission. On January

14, 2018, undersigned counsel sought consent of the parties for the filing of

this brief. Later on that same day, Counsel for the Applicants granted

consent. On January 15, 2018, Counsel to Plaintiffs/Appellees also consented

to the filing of this amicus brief. On January 16, 2018, counsel to the State of

North Carolina provided blanket consent to the filing of amicus briefs.

5

v. Torres, No. 17-cv-5054 (E.D. Pa. Nov. 22, 2017) (First Amended Complaint

filed) (ECF 42).

Further, should any of these three cases result in the invalidation of

Pennsylvania’s congressional map, Senator Scarnati, as leader of the

Pennsylvania Senate would be directly involved in drafting and enacting new

redistricting legislation at breakneck speed before February 13, 2018, when

Pennsylvania begins circulating nominating petitions for congressional

candidates.

The substantial legal uncertainty caused by numerous, conflicting

lower court decisions and temporary lack of guidance from this Court

concerning the appropriate standard to evaluate partisan gerrymandering

claims (if any) harms Senator Scarnati, as a defendant in these actions, by

forcing him to defend himself and Pennsylvania’s congressional districting

legislation without a known, clear, and fixed standard. The roiling legal

landscape also make it impossible for Senator Scarnati and the rest of the

Pennsylvania General Assembly to know what is and what is not permissible

in any court-ordered redrawing of the map should that become necessary.

Senator Scarnati urges this Court to stay the three-judge court’s ruling

in the instant case to allow this Court to consider and issue rulings in Gill v.

Whitford (No. 16-1161) and Benisek v. Lamone (No. 17-333), and thereby offer

lower courts definitive and uniform guidance. A stay pending appeal will

send a strong and clear message to lower courts to defer any unguided

6

experimentation that threatens to create a patchwork of conflicting legal

regimes and throw into chaos the 2018 congressional elections across the

country. A stay pending appeal will also foster stability for defenders of the

Pennsylvania congressional districting plan, Pennsylvania legislators, and

most importantly, Pennsylvania voters during the 2018 congressional

election season.

ARGUMENT

I.

THE COURT HAS NOT OFFERED A CLEAR,

JUDICIALLY MANAGEABLE STANDARD TO EVALUATE

PARTISAN GERRYMANDERING CLAIMS

The Constitution vests the various state legislatures with the primary

responsibility for drawing congressional districts, see U.S. Const. art. I, § 4,

and this Court has repeatedly confirmed the primary role state legislatures

play in drawing congressional districts. See, e.g., Growe v. Emison, 507 U.S.

25, 34 (1993). Because the Constitution vests a political branch of

government with the primary responsibility of drawing districts, the Court

has recognized that politics inevitably plays a role in the crafting of districts.

See, e.g., Gaffney v. Cummings, 412 U.S. 735, 753 (1973); Vieth v. Jubelirer,

541 U.S. 267, 285 (2004) (plurality op.); id. at 307 (Kennedy, J., concurring);

id. at 358, 360 (Breyer, J., dissenting).

Consequently, this Court has struggled to ascertain a judiciallymanageable standard to evaluate when partisan gerrymandering claims

violate the Constitution; from the four separate opinions in Davis v.

Bandemer, 478 U.S. 109 (1986), to the five separate opinions in Vieth, 541

7

U.S. 267, to the six separate opinions in League of United Latin Am. Citizens

v. Perry (“LULAC”), 548 U.S. 399, 514 (2006), this Court has produced 15

separate opinions, none of which produced a judicially manageable rule or

standard to determine if and when an unconstitutional partisan gerrymander

has occurred.

This Court’s struggle with this difficult question over the past three

decades led district courts to the prevailing wisdom that partisan

gerrymandering claims are, at best, justiciable in theory, but may be futile in

fact given the absence of any coherent standard. See, e.g., Raleigh Wake

Citizens Ass'n v. Wake Cnty. Bd. of Elections, 827 F.3d 333, 348 (4th Cir.

2016) (“We recognize that the Supreme Court has not yet clarified when

exactly partisan considerations cross the line from legitimate to unlawful.”);

Shapiro v. McManus, 203 F. Supp. 3d 579, 594 (D. Md. 2016) (three-judge

court) (“Taken together, the combined effect of Bandemer, Vieth, and LULAC

is that, while political gerrymandering claims premised on the Equal

Protection Clause remain justiciable in theory, it is presently unclear

whether an adequate standard to assess such claims will emerge.”); Ala.

Legislative Black Caucus v. Alabama, 988 F. Supp. 2d 1285, 1296 (M.D. Ala.

2013) (“The Black Caucus plaintiffs conceded at the hearing on the pending

motions that the standard of adjudication for their claim of partisan

gerrymandering is ‘unknowable.’”) (three-judge court).

That prevailing wisdom persisted until November 2016.

8

II.

THE

RAPID

DESTABILIZATION

OF

GERRYMANDERING JURISPRUDENCE

PARTISAN

In November of 2016, a divided three-judge panel of the U.S. District

Court for the Western District of Wisconsin unsettled this long line of

precedent by becoming the first court in 30 years to rule that a legislature

violated the Fourteenth Amendment’s Equal Protection Clause with an

alleged partisan gerrymander. See Whitford v. Gill, 218 F. Supp. 3d 837

(W.D. Wis. 2016) (three-judge court) (“Whitford”). This Court, however, issued

a stay pending appeal. Gill v. Whitford, 137 S. Ct. 2289 (2017). In noting

probable jurisdiction, this Court also indicated that it was postponing

jurisdictional questions to the merits. See Gill v. Whitford, 137 S. Ct. 2268

(2017).

Since this Court issued the stay in Whitford, however, various district

courts have treated the Whitford decision and this Court’s stay order in

disparate manners, sowing confusion. Whereas some courts have properly

read this Court’s stay order to tread carefully, others have brushed it aside

and bolted headlong into reevaluating their own state’s congressional

districts in advance of the 2018 elections.

First, a divided three-judge court in Maryland issued a stay and denied

a preliminary injunction in light of this Court’s order in Gill. See No. 13-3233,

Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (D. Md. Aug. 24, 2017)

(three-judge court). The court issued the stay because “the [U.S. Supreme]

Court's analysis [in Gill v. Whitford] undoubtedly will shed light on critical

9

questions in this case, and the parties and the panel will be best served by

awaiting that guidance.” Id. at *36.

Then, on September 8, 2017, the United States District Court for the

Middle District of North Carolina denied a stay in the instant action and

ordered a trial in October. See Common Cause v. Rucho, Nos. 16-1026 and 161164 (M.D.N.C. Sept. 8, 2017) (three-judge court) (ECF 87).

In Pennsylvania, a few weeks later on October 10, 2017, the United

States District Court for the Eastern District of Pennsylvania ordered an

expedited proceeding that resulted in a four-day trial less than sixty days

after the Complaint was filed in Agre v. Wolf. No. 17-cv-04392 (E.D. Pa.

Oct. 10, 2017) (ECF 20) (scheduling trial for the week of December 4, 2017).

The court specifically set this schedule to permit the ordering of relief in time

for the 2018 Pennsylvania congressional elections.

Two days after that, a three-judge panel in Alabama dismissed a

partisan gerrymandering claim after concluding that the plaintiffs failed to

identify a standard to evaluate their partisan gerrymandering claims. See

Ala. Legislative Black Caucus v. Alabama, No. 12-691, 12-1081, 2017 U.S.

Dist. LEXIS 168741, *22-23, (M.D. Ala. Oct. 12, 2017) (three-judge court).

Similar cases are also pending in Georgia, Ga. State Conference of the

NAACP v. Brian Kemp, No. 17-1427 (N.D. Ga. April 24, 2017) (Complaint

filed) (ECF 1), and in Michigan, League of Women Voters of Mich. v. Johnson,

17-14148 (E.D. Mich. Dec. 22, 2017) (three-judge court) (Complaint filed)

10

(ECF 1) (challenging congressional and state legislative districts). In fact,

since Whitford’s divided decision in November of 2016, at least nine partisan

gerrymandering claims have been or are being pursued across six states.3

Indeed, since the Whitford decision, a total of 46 congressional districts, or

11% of the total, are being challenged as unconstitutional partisan

gerrymanders.4

The rapid multiplication of partisan gerrymandering claims has placed

partisan gerrymandering jurisprudence into a state of flux. But what is

troubling is not the sheer number of these claims, but that, in the absence of

clear guidance from this Court, lower courts have demonstrated a willingness

to conduct their own disorderly legal experiments and impose a chaotic

patchwork of conflicting requirements on states, legislators, and voters.

Accordingly, this Court should stay the district court’s opinion in the

instant matter so that this Court can provide guidance and stability as to

how courts should evaluate partisan gerrymandering claims.

3 Additional cases are: League of Women Voters v. Commonwealth, No. 159

MM 2017 (Pa. June 15, 2017) (Complaint filed) and Diamond v. Torres, No.

17-5054 (E.D. Pa. Nov. 9, 2017) (Complaint Filed); Texas Democratic Party v.

Abbot, No. 17-680 (U.S. Nov. 6, 2017) (Dismissed for want of jurisdiction).

4 These include North Carolina’s 13 congressional districts, Pennsylvania’s 18

congressional districts, Michigan’s 14 congressional districts, and Maryland’s

1 challenged congressional district, which potentially may require all of

Maryland’s congressional districts to be redrawn.

11

III.

IN THE ABSENCE OF CLEAR GUIDANCE, LOWER

COURTS WILL CREATE AND IMPOSE MULTIPLE,

CONFLICTING TESTS TO EVALUATE PARTISAN

GERRYMANDERING CLAIMS

The instant case proves an illustrative example.

Here, the three-judge panel in North Carolina denied a request for a

stay because of what it determined were substantive factual and legal

differences between this case and Whitford. See Common Cause v. Rucho, No.

16-1026, 16-1164, 2017 U.S. Dist. LEXIS 145590 at *17-19 (M.D.N.C. Sept. 8,

2017). Then it ruled on the merits that North Carolina’s congressional

district plan is an unconstitutional partisan gerrymander on three separate

grounds (Equal Protection Clause, Free Speech and Association Clause, and

the Elections Clause). See Common Cause, Nos. 16-1026, 16-1164, slip op.

(M.D.N.C. Jan. 9, 2018) (three-judge court) (ECF 118).

The court arrived at this conclusion by rejecting long-standing

recognition

by

this

Court

that

legislatures

have

lawfully

injected

partisanship into redistricting legislation since the founding and that

partisanship is to be expected in redistricting. See id. at 58-59, 64; but see,

e.g., Vieth, 541 U.S. at 274-75 (plurality op.); Gaffney, 412 U.S. at 753; Cooper

v. Harris, 137 S. Ct. 1455, 1488 (2017) (Alito, J., Roberts, C.J., and Kennedy,

J., dissenting). The court seems to suggest that no partisanship may be

injected into redistricting plans and that any districting plan must afford the

political parties approximate proportional representation in congressional

12

seats based on aggregate statewide votes from each of the single-member

elections. See Common Cause, slip op. at 57.

Accordingly, the court adopted two radically new tests to evaluate

partisan gerrymandering claims:

Per the district court, a plan violates the Equal Protection Clause if it

favors one political party to the disadvantage of another without an

“adequate” justification. See id. at 80-81. Unlike racial gerrymandering

claims, a plaintiff need not show that partisanship was the predominant

intent behind the plan. Rather, a plaintiff need only show that the legislature

acted with any intent to disadvantage one political party to the advantage of

the other. See id. at 86; compare with Cooper, 137 S. Ct. at 1463-64; see also

Shaw v. Reno, 509 U.S. 630, 650 (1993) (“But nothing in our case law compels

the conclusion that racial and political gerrymanders are subject to precisely

the same constitutional scrutiny. In fact, our country's long and persistent

history of racial discrimination in voting—as well as our Fourteenth

Amendment jurisprudence, which always has reserved the strictest scrutiny

for discrimination on the basis of race ... would seem to compel the opposite

conclusion.”). Then, to prove discriminatory effect, the court held that a

plaintiff must prove that the partisan bias in the redistricting plan will

“likely” persist during the life of the redistricting plan “such that an elected

representative from the favored party will not feel a need to be responsive to

13

constituents who support the disfavored party.” Common Cause, slip op. at

120.

The court also articulated a wholly new and separate test under the

First Amendment. 5 According to the court, a plaintiff may independently

invalidate a districting plan under the First Amendment if she proves

(1) that the challenged districting plan was intended to

favor or disfavor individuals or entities that support a

particular candidate or political party, (2) that the

districting plan burdened the political speech or

associational rights of such individuals or entities and (3)

that a causal relationship existed between the

government actor’s discriminatory motivation and the

First Amendment burdens imposed by the districting

plan.

Id. at 162-63. As with the court’s Fourteenth Amendment test, a plaintiff can

apparently satisfy the first, intent prong if she shows that the legislature was

motivated by any partisan intent. A plaintiff can satisfy the second prong by

showing anything more than a de minimis chilling effect or burden on any

First Amendment activity. See id. at 164-67. And a plaintiff easily fulfills the

third, causation requirement if any portion of the non-de minimis effect is

attributable to the minimal partisan intent, i.e. but for the existence of

partisan intent, no burden on plaintiff’s First Amendment activity would

Courts have consistently held that there is no independent partisan

gerrymandering claim under the First Amendment without a concurrent

violation of the Fourteenth Amendment. See, e.g., Whitford, 218 F. Supp. 3d

at 884; Republican Party of North Carolina v. Martin, 980 F.2d 943, 959 n.28

(4th Cir. 1992); Washington v. Finlay, 664 F.2d 913, 927-28 (4th Cir. 1981);

Pope v. Blue, 809 F. Supp. 392, 398-99 (W.D.N.C. 1992).

5

14

exist. See id. at 173-74. As Judge Osteen noted, this test “would in effect

foreclose all partisan considerations in the redistricting process.” Id. at 201.

Needless to say, these tests are not only a radical departure from this

Court’s precedent—including the demanding standard articulated by this

Court’s plurality opinion in Bandemer and the conclusion of the plurality in

Vieth that all partisan gerrymandering claims are nonjusticiable—but also a

departure from the standard articulated by the Whitford district court, which

requires plaintiffs to prove that a redistricting plan “(1) is intended to place a

severe impediment on the effectiveness of the votes of individual citizens on

the basis of their political affiliation, (2) has that effect, and (3) cannot be

justified on other, legitimate legislative grounds.” 218 F. Supp. 3d at 884

(emphasis added).

Absent this Court granting a stay, confusion will persist within both

the federal district courts and state courts, as lower courts (such as the one

here), continue to view the post-Whitford legal landscape as an open

invitation to conduct their own, unguided legal experiments at the expense of

states, legislators, and voters.

IV.

DENIAL OF A STAY PREJUDICES OTHER STATES,

LEGISLATORS AND VOTERS

As the situation in Pennsylvania clearly demonstrates, a denial of a

stay in this action will prejudice other states, legislators, and voters.

Because new tests, purporting to determine whether an alleged

partisan gerrymander violates the Constitution, are emerging each day,

15

Senator Scarnati cannot adequately defend himself and Pennsylvania’s

congressional districting plan in court. Senator Scarnati simply cannot

possibly know which standard the courts will ultimately apply to evaluate the

claims arrayed against him: in effect, Senator Scarnati must be prepared to

simultaneously defend himself and Pennsylvania’s congressional districting

plan against the Bandemer plurality’s standard that the Supreme Court of

Pennsylvania has adopted, Erfer v. Commonwealth, 794 A.2d 325, 331-32 (Pa.

2002); the Whitford district court standard, 218 F. Supp. 3d at 884; now the

Common Cause standard, Common Cause, slip op. at 80-81, 86, 120; and

whatever new standard that the Pennsylvania Supreme Court or the U.S.

District Court for the Eastern District of Pennsylvania may ultimately

divine. See, e.g., Agre, slip op. at 117 (E.D. Pa. Jan. 10, 2018) (Baylson, J.,

dissenting) (ECF 213) (articulating new “visual test” arising solely from the

Elections Clause of the U.S. Constitution).

And the possibility that the Pennsylvania Supreme Court and the U.S.

District Court for the Eastern of Pennsylvania will pronounce different and

mutually conflicting standards and requirements cannot be overlooked. In

that case, state legislators such as Senator Scarnati will be left utterly lost as

to how they can draw a constitutionally permissible remedial map if so

ordered.

All this comes at a critical time, with the submission of nominating

petitions for Pennsylvania’s congressional primaries set to open in less than a

16

month, on February 13, 2018. At this point, any disruption of Pennsylvania’s

congressional districts will row chaos in Pennsylvania’s legislature and

among Pennsylvania’s electorate. See Purcell v. Gonzalez, 549 U.S. 1, 4-5

(2006) (“Court order affecting elections, especially conflicting orders, can

themselves result in voter confusion and consequent incentive to remain

away from the polls. As an election draws closer, that risk will increase.”).

This Court must grant a stay in the instant action to prevent the

already confusing array of district court decisions from metastasizing, and to

send a clear message to lower courts to tread carefully while awaiting this

Court’s further guidance. The proper adjudication of numerous partisan

gerrymandering actions and orderly administration of the 2018 congressional

elections across this country depend on it.

CONCLUSION

For the foregoing reasons, this Court should issue a stay of all

proceedings before the three-judge panel in the U.S. District Court for the

Middle District of North Carolina pending this Court’s disposition of

Applicants’ Jurisdictional Statement.

17

Respectfully submitted on this 16th day in January, 2018.

_______________________

Jason Torchinsky

*Counsel of Record

Shawn Sheehy

HOLTZMAN VOGEL JOSEFIAK

TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, Virginia 20186

Phone: (540) 341-8808

Fax: (540) 341-8809

Email: jt@hvjt.law

Ssheehy@hvjt.law

Attorneys for Amicus Curiae

Senator Joseph B. Scarnati, III

/s/ Brian S. Paszamant

Brian S. Paszamant

Jason A. Snyderman

John P. Wixted

BLANK ROME LLP

One Logan Square

130 N. 18th Street

Philadelphia, Pennsylvania 19103

Phone: (215) 569-5791

Fax: (215) 569-5555

Email: Paszamant@blankrome.com

Snyderman@blankrome.com

JWixted@blankrome.com

Attorneys for Amicus Curiae

Senator Joseph B. Scarnati, III

18

No. 17A745

In the

Supreme Court of the United States

ROBERT RUCHO, ET AL.,

Applicants,

v.

COMMON CAUSE, ET AL.,

Respondents.

CERTIFICATE OF SERVICE

I, Jason Torchinsky, a member of the Supreme Court Bar, hereby certify that

three copies of the attached Amicus Brief and Motions in support of

Applicants’ Emergency Application for Stay, filed by hand-delivery to the

United States Supreme Court, were served via Next-Day Service and on the

following parties listed below on this 16th day of January, 2018. An electronic

pdf of the Application has been sent to the following counsel via e-mail:

ALLISON JEAN RIGGS

SOUTHERN COALITION FOR

SOCIAL JUSTICE

1415 W. Hwy. 54, Suite 101

Durham, NC 27707

(919) 323-3380 ext. 117

allison@southerncoalition.org

Counsel for League of Women Voters, et al.

EMMET J. BONDURANT

BONDURANT MIXSON & ELMORE, LLP

1201 W. Peachtree St., N.W.

Suite 3900

Atlanta, GA 30309

(404) 881-4100

bondurant@bmelaw.com

EDWIN M. SPEAS, JR.

POYNER SPRUILL, LLP

301 Fayetteville Street, Ste. 1900

Raleigh, NC 27601

(919) 783-6400

espeas@poynerspruill.com

Counsel for Common Cause, et al.

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY KIRKLAND & ELLIS

LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Robert Rucho, et al.

19

JASON TORCHINSKY

Counsel of Record

HOLTZMAN VOGEL JOSEFIAK

TORCHINSKY PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808

jt@hvjt.law

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