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

No. 17-1295

In the

Supreme Court of the United States

________________

ROBERT A. RUCHO, et al.,

v.

Appellants,

COMMON CAUSE, et al.,

________________

Appellees.

On Appeal from the United States District Court

for the Middle District of North Carolina

________________

BRIEF OPPOSING MOTIONS TO AFFIRM

________________

PHILLIP J. STRACH

MICHAEL D. MCKNIGHT

OGLETREE, DEAKINS,

NASH, SMOAK &

STEWART, P.C.

4208 Six Forks Road

Suite 1100

Raleigh, NC 27609

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Appellants Robert A. Rucho, David R.

Lewis, Timothy K. Moore, and Philip E. Burger

May 15, 2018

TABLE OF CONTENTS

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

INTRODUCTION ....................................................... 1

I.

Plaintiffs’ Statewide Standing Theory Is

Wrong ................................................................... 3

II. The District Court’s Four Novel Partisan

Gerrymandering Tests Are Neither Limited

Nor Precise........................................................... 7

CONCLUSION ......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257 (2015).......................................... 3, 7

Baker v. Carr,

369 U.S. 186 (1962) .................................................. 4

Benisek v. Lamone,

No. 17-333 (U.S.) ...................................................... 1

Bush v. Vera,

517 U.S. 952 (1996) ................................................ 11

Cook v. Gralike,

531 U.S. 510 (2001) ................................................ 12

Davis v. Bandember,

478 U.S. 109 (1986) .................................................. 4

Evenwel v. Abbott,

136 S. Ct. 1120 (2016).............................................. 5

Gill v. Whitford,

No. 16-1161 (U.S.) .................................................... 1

Gray v. Sanders,

372 U.S. 368 (1963) .................................................. 4

Hunt v. Cromartie,

526 U.S. 541 (1999) .................................................. 8

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .................................................. 3

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017)................................................ 8

Reynolds v. Sims,

377 U.S. 533 (1964) .................................................. 4

Shaw v. Hunt,

517 U.S. 899 (1996) .................................................. 3

iii

Thornburg v. Gingles,

478 U.S. 30 (1986) .................................................... 5

United States v. Hays,

515 U.S. 737 (1995) .................................................. 5

Vieth v. Jubelirer,

541 U.S. 267 (2004) ........................................ passim

INTRODUCTION

The district court concluded that virtually any

Democrat in North Carolina has standing to challenge

the State’s entire 2016 congressional redistricting

plan (“2016 Plan”), and that four different

constitutional

provisions

provide

judicially

administrable limits on partisan gerrymandering.

The notion that such a novel and revolutionary

decision should be summarily affirmed beggars belief.

Indeed, plaintiffs do not dispute that this Court should

hold this case pending Gill v. Whitford, No. 16-1161

(U.S.), and Benisek v. Lamone, No. 17-333 (U.S.), both

of which involve whether partisan gerrymandering

claims are justiciable. If the answer is no, then the

decision below must be reversed, not affirmed. But

even if the Court takes a more incremental

approach—viz., plaintiffs may not bring statewide

partisan gerrymandering challenges, and some

consideration of partisan advantage is permissible—

the decision below still cannot stand, for it squarely

conflicts with both principles.

Plaintiffs insist they may attack the 2016 Plan in

toto, even though that gambit is precluded in every

other districting context. But the Common Cause

plaintiffs support that assertion only through ipse

dixit, and the League plaintiffs do so only by distorting

precedent. Tellingly, the Common Cause plaintiffs

quickly shift to arguing they have always asserted

“district-specific standing.” But whatever they may

have alleged in their complaint, they pressed, and the

district court adjudicated, only statewide theories.

That is unsurprising, as any district-level allegations

were conclusory at best, and the evidence confirms

2

that plaintiffs could not plausibly claim districtspecific injury in many districts.

As for the merits, plaintiffs do not fully defend

the district court’s entire grab-bag of partisan

gerrymandering tests, all of which make any intent to

district for partisan advantage constitutionally

suspect. Plaintiffs understandably attempt to soften

that extreme position, promising that partisan

considerations are still permitted so long as legislators

do not act with “invidious” intent. But simply labeling

a certain degree of partisan advantage “invidious”

does nothing to answer the $64,000 question of how

much partisan advantage is too much (or “invidious,”

if you prefer). And if this Court’s gerrymandering

cases teach anything, it is that some degree of

districting for partisan advantage is both inevitable

and permissible under a Constitution that explicitly

contemplates that districts will be drawn by

legislatures.

If there is a justiciable standard for partisan

gerrymandering, it is almost certain to come in a case

where parties have focused on and developed a single

constitutional theory with district-specific injuries

tailored to the particular injury alleged.

This

statewide challenge based on four different

constitutional theories, each less plausible and less

forgiving than the last, is the very antithesis of such a

case. Accordingly, no matter what the result of this

Court’s decisions in Gill and Benisek, the decision

below should be reversed or vacated.

3

I.

Plaintiffs’ Statewide Standing Theory Is

Wrong.

Even assuming there is some justiciable way to

adjudicate partisan gerrymandering claims, it is not

the statewide approach plaintiffs took here. Plaintiffs

pressed only statewide arguments, and the district

court indiscriminately analyzed the 2016 Plan as a

whole, focusing on the legislature’s generic “intent” to

district for partisan advantage statewide, not how

that intent manifested itself in any particular district

or injured any particular plaintiff. That methodology

is inconsistent with how this Court has approached

districting challenges in every other context.

For example, “[a] racial gerrymandering

claim … applies district-by-district,” and “does not

apply to a State considered as an undifferentiated

‘whole.’” Ala. Legislative Black Caucus v. Alabama

(ALBC), 135 S. Ct. 1257, 1265 (2015). Accordingly,

while “a voter who lives in the district attacked” has

standing to challenge that district, courts may not

assess whether “race improperly motivated the

drawing of boundary lines of the State considered as a

whole.” Id. Likewise, the “right to an undiluted vote”

does not “belong[] to the minority as a group,” but

instead “to its individual members.” Shaw v. Hunt,

517 U.S. 899, 917 (1996). Courts considering votedilution claims thus must conduct an “‘intensely local

appraisal’ of the challenged district” to determine

whether the plaintiff is part of a politically cohesive

and geographically compact community whose ability

to elect its candidate of choice has been burdened.

League of United Latin Am. Citizens v. Perry

(LULAC),

548

U.S.

399,

437

(2006).

4

Malapportionment cases are the same: Plaintiffs may

bring them only to allege injuries in the districts “in

which they reside.” Baker v. Carr, 369 U.S. 186, 207

(1962); see Reynolds v. Sims, 377 U.S. 533, 537 (1964);

Wesberry v. Sanders, 376 U.S. 1, 7 (1964); Gray v.

Sanders, 372 U.S. 368 (1963).

Plaintiffs do not dispute that they challenged the

2016 Plan on a statewide basis. Yet the Common

Cause plaintiffs attempt to justify that tactic only

through the bald assertion that the statewide

approach is “correct[].” CC.Mot.15. The League

plaintiffs say more, but to no avail. According to them,

an “unbroken wall of precedent” supports statewide

partisan gerrymandering claims, from Davis v.

Bandember, 478 U.S. 109 (1986), to LULAC, to various

district court cases.

LWV.Mot.19-20.

But an

“unbroken wall” of precedents agreeing on no

justiciable theory for partisan gerrymandering claims

hardly helps plaintiffs on standing. Moreover, neither

Bandemer nor LULAC even addressed the statewide

approach, and the district court cases only “assumed”

its validity. LWV.Mot.20. And even some of the

Justices who would have found some claims justiciable

have questioned the validity of statewide claims. See,

e.g., Vieth v. Jubelirer, 541 U.S. 267, 353 (2004)

(Souter, J., dissenting).

Nor do the League plaintiffs successfully

distinguish racial gerrymandering, vote-dilution, and

malapportionment cases. They suggest that the Court

should silo district-specific analysis to the racial

gerrymandering context because such cases “do not

contain claims … that either minority or nonminority

voters are underrepresented in the legislature.”

5

LWV.Mot.26. But that is only because this Court has

rejected such claims as too generalized to satisfy

Article III. See United States v. Hays, 515 U.S. 737

(1995). Plaintiffs cannot explain why the result

should be different here.

As for vote dilution, the League plaintiffs contend

that statewide vote-dilution claims are permissible

because “vote dilution may be accomplished by

cracking or by packing minority voters.” LWV.Mot.2425. That is only half right. While a vote-dilution claim

certainly may be brought based on cracking or

packing, it must still be brought by a plaintiff who

actually lives in and is challenging the allegedly

cracked or packed district. See Thornburg v. Gingles,

478 U.S. 30, 49-51 (1986). Here, plaintiffs never even

tried to prove that any particular district was

“cracked” or “packed”—indeed, the League plaintiffs

alleged “cracking” and “packing” in only a handful of

districts, almost all of which no League plaintiff lives

in, LWV.Mot.21 n.2.1

Finally, as for the one-person, one-vote cases, the

very authority the League plaintiffs cite confirms that

standing extends only to “‘voters whose votes were

diluted’”—i.e., voters injured in their own districts.

LWV.Mot.24 (quoting Evenwel v. Abbott, 136 S. Ct.

1120, 1131 n.12 (2016)). And as the League plaintiffs’

counsel explained at the Gill argument, plaintiffs

filing malapportionment suits “have to live in an

overpopulated district rather than an underpopulated

district,” which necessarily means malapportionment

1 The League plaintiffs reside in only six of the thirteen

districts. League Dkt.41 at ¶¶18-29.

6

suits cannot be filed by plaintiffs living in any given

legislative district. Gill Tr.36. Yet that is precisely

the unprecedented standing theory that the district

court adopted here.

Plaintiffs offer no reason

whatsoever why partisan-gerrymandering claims, if

they can be brought at all, would be immune from the

otherwise-uniform rule that redistricting challenges

must be brought on a district-specific basis.

The Common Cause plaintiffs recognize the flaws

in their counterparts’ approach, but insist that their

challenge is different. CC.Mot.15 (“While the League

of Women Voters plaintiffs ‘proceed[ed] only on a

‘statewide’ … theory,’ the Common Cause plaintiffs

did not.’”). They accuse appellants of “flagrantly

mischaracteriz[ing]” their case as relying on only a

statewide theory, CC.Mot.15, even though appellants

expressly acknowledged the Common Cause plaintiffs

“‘claim[ed] they have standing to assert … district-bydistrict challenges’ to the 2016 Plan as a whole,” JS.7.

The more fundamental problem, as appellants also

pointed out, is that whatever the Common Clause

plaintiffs may have alleged in their complaint, they

made absolutely no attempt to litigate their claims on

a district-by-district basis. And understandably so, as

many of them did not suffer any district-specific

injury. For example, the plaintiffs from Congressional

District 3 testified that they voted for the Republican

candidate who prevailed in the 2016 elections held

under the 2016 Plan, begging the question how any

purported pro-Republican gerrymandering could have

deprived

them

of

their

district-specific

7

representational rights.

Dkt.101-11 at 15.2

Rucho Dkt.101-10 at 18;

Even the Common Cause plaintiffs’ motion to

affirm reinforces the statewide nature of the

challenge. It references a handful of specific districts

in passing while discussing “the 2016 Plan” nearly 40

times. And the district court, for its part, made zero

findings that the General Assembly gerrymandered

any particular district, let alone did so in a way that

actually injured any particular plaintiff. Instead, the

court just faulted the legislature for drawing “the 2016

Plan,” JS.App.27-28, to provide advantages to

Republican candidates through the state. “This is not

a technical, linguistic point. … [T]he District Court’s

terminology mattered.” ALBC, 135 S. Ct. at 1265.

Accordingly, if statewide partisan gerrymandering

claims fail for lack of standing or are otherwise

nonjusticiable, then the decision below cannot stand.

II. The District Court’s Four Novel Partisan

Gerrymandering Tests Are Neither Limited

Nor Precise.

In a context where this Court has struggled for

decades to come up with even one test for adjudicating

partisan gerrymandering claims, the district court

purported to identify four—one grounded in the Equal

Protection Clause; one in the First Amendment; and

two in the Elections Clauses. With all due respect,

those four tests reflect not multiple flashes of insight,

but the basic incoherence of the district court’s

approach, which treats any partisan motivation as

2 The plaintiffs do not dispute that the organizational plaintiffs

lack standing if the individual plaintiffs lack standing. JS.21 n.5

8

verboten in an area where the whole problem is

identifying how much is too much. It is thus telling,

though not surprising, that the League plaintiffs

defend only the first test.3 And not one of the four is

“limited and precise.”

Vieth, 541 U.S. at 306

(Kennedy, J., concurring).

Equal Protection Clause. The district court

first concluded that a redistricting plan violates the

Equal Protection Clause if it is enacted with

“discriminatory intent” and produces “discriminatory

effects” that are not attributable to a “legitimate

redistricting objective.” JS.App.88. Remarkably, any

intent to district for partisan advantage is

constitutionally suspect under that test, JS.App.9394, even though it is well-established “that a

jurisdiction may engage in constitutional political

gerrymandering,” Hunt v. Cromartie, 526 U.S. 541,

551 (1999), and even though racial gerrymandering

claims require “predominant” intent, JS.24-25. The

notion that the Equal Protection Clause—the “central

purpose” of which was to “eliminate racial

discrimination,” Pena-Rodriguez v. Colorado, 137 S.

Ct. 855, 867 (2017)—is more tolerant of race-based

districting than partisan districting is a complete nonstarter.

Plaintiffs try to soften the district court’s

unforgiving intent standard, claiming that it prohibits

only “invidious” intent to discriminate—i.e.,

The League plaintiffs never even mention the Elections

Clauses. And while they endorse First Amendment claims, they

do not defend the district court’s First Amendment test, but

rather suggest that the equal protection test should somehow

establish a First Amendment violation too. LWV.Mot.4 & n.1.

3

9

legislators cannot “entrench” their own party and

“subordinate” its rival. CC.Mot.25; LWV.Mot.29.

Plaintiffs then claim this reimagined standard is

actually more stringent than a “predominant intent”

standard. CC.Mot.26-28; LWV.Mot.30-32. But new

labels cannot solve the basic justiciability problem. In

reality, all plaintiffs mean by intent to “subordinate”

or “entrench” is intent to district for partisan

advantage. As Judge Osteen thus correctly explained:

“It is difficult to conceive of any political issue,

including redistricting, where opposing sides would

not possess … some form of discriminatory intent as

that term is used in this case.” JS.App.214. And while

“entrenching” and “subordinating” certainly sound

worse than simply pursuing legitimate partisan

advantage, those labels do nothing to give courts

meaningful guidance to “draw[] the line between good

politics and bad politics.” Vieth, 541 U.S. at 299

(plurality op.).

The effects prong of the district court’s test—

which measures “bias” towards a “favored party,”

JS.App.130—is just as amorphous, as it never

purports to explain how much “bias” is too much or

what evidence suffices to prove it. Plaintiffs view that

uncertainty as a virtue, CC.Mot.28-32; LWV.Mot.3436, but when the exercise is to develop a “limited and

precise” test, imprecision is fatal. Vieth, 541 U.S. at

267 (plurality op.) (“No test … can possibly be

successful unless one knows what he is testing for.”).

Finally, once the diluted intent and effects prongs

are satisfied, the districting map is all but doomed.

There must be a “legitimate redistricting objective”

that explains the “impermissible” effects, but in the

10

words of the district court, there is “never … any

legitimate constitutional, democratic, or public

interest advanced” by partisan gerrymandering,

App.92 n.16, rendering the outcome of applying the

third prong a foregone conclusion.

First Amendment. The First Amendment test is

equally incoherent. As Judge Osteen explained, just as

with the equal protection test, its intent prong “would

in effect foreclose all partisan considerations in the

redistricting process,” JS.App.219, even though this

Court has “said time and again you can’t take all

consideration of partisan advantage out of districting,”

Benisek Tr.16 (Alito, J.). Yet again, the Common

Cause plaintiffs profess confidence that courts can

separate “invidious and non-invidious use of partisan

classifications.”

CC.Mot.34.

But once again,

“invidious” is a label, not a test that provides

meaningful assistance in the illusive task of

determining how much partisan consideration is too

much.

The Common Cause plaintiffs embrace the

startling notion that anything more than a de minimis

First Amendment injury resulting from any intent to

district for partisan advantage triggers strict scrutiny,

and that injuries are cognizable even where plaintiffs

remain free to “‘field candidates for office, participate

in campaigns, vote for their preferred candidate, or …

associate with others.’” CC.Mot.32-33, 35 & n.6.4 That

hair-trigger application of strict scrutiny troubled

many Justices during the Benisek argument. Benisek

4 Plaintiffs do not dispute appellants’ argument that promoting

partisan advantage is not state action that violates the First

Amendment. JS.30.

11

Tr.19 (Roberts, C.J.) (“how would you ever satisfy

strict scrutiny in … a case like this?”); id. at 14 (Alito,

J.) (“I really don’t see how any legislature will ever be

able to redistrict.”); id. at 18 (Kagan, J.) (“even when

the state … wants to achieve balanced districts or

wants to undo a former gerrymander … you would still

put the state through a very strict scrutiny test …?”;

id. at 17-18 (Kennedy, J.). And understandably so, as

not even racial gerrymandering claims categorically

face strict scrutiny. Bush v. Vera, 517 U.S. 952, 964

(1996).

Ultimately, the restrictive First Amendment test

here would transfer mapmaking authority from state

legislatures to the federal judiciary without

meaningful guidance, despite the “longstanding

recognition of the importance in our federal system of

each State’s sovereign interest in implementing its

redistricting plan.” Id. at 978.

Elections Clauses. The League plaintiffs wisely

abandon the district court’s novel Elections Clause

holdings, and the Common Cause plaintiffs’ halfhearted efforts to defend them are unavailing. No

other court in history has agreed that districting for

partisan advantage “exceeds” the State’s districting

powers or deprives “the People” of their right to elect

Representatives under Sections 2 and 4 of Article I.

JS.App.195, 199. With good reason, as it strains

credulity to claim that the very same constitutional

text that “clearly contemplates districting by political

entities” is the font of an administrable partisan

gerrymandering test. Vieth, 541 U.S. at 285-86

(plurality op.).

12

Plaintiffs boldly claim (at 38) that their contrary

contention “follows a fortiori” from Cook v. Gralike,

531 U.S. 510 (2001). In Gralike, the Court concluded

that States could not print pejorative labels next to the

names of congressional candidates who did not

support term-limit legislation, id. at 525-26, as that

constituted an impermissible “attempt to control the

actions of the State’s congressional delegation,” id. at

527 (Kennedy, J., concurring). While Gralike might

have been instructive had the General Assembly

passed legislation that branded opposing candidates

as “tax-and-spend-liberals,” rather than Democrats,

on election ballots, id. at 525, it is difficult to imagine

how Gralike, a case that says literally nothing about

partisan gerrymandering, is even relevant here, let

alone makes this case “a pushover.” CC.Mot.39. That

is especially true considering that the Vieth plaintiffs

raised an Elections Clauses argument just a few

Terms after Gralike, and the Vieth plurality dismissed

that argument, while no other Justice deemed it

worthy of mention. JS.33.

The Vieth Court’s skepticism was well-founded.

The Elections Clauses delegate to state legislatures

the power to draw districts for federal elections and

authorize Congress to alter those districts as it sees

fit. Vieth, 541 U.S. at 275 (plurality op.). This whole

enterprise is “root-and-branch a matter of politics,” id.

at 285-86, and any effort to remove political

considerations from it would work a “substantial

intrusion into the Nation’s political life,” id. at 306

(Kennedy, J., concurring). Thus, even assuming there

is an administrable partisan gerrymandering test out

there, it is not lurking in the Elections Clauses. To the

contrary, such a test, if it emerges at all, is likely to be

13

the product of a challenge focused on a single

constitutional provision brought by voters suffering

the precise injury protected by that constitutional

provision in the district in which they engaged in the

relevant constitutionally protected conduct.

The

challenge here was the polar opposite, and the district

court’s acceptance of four different theories for

statewide challenges “goes a long way to establishing

that there is no constitutionally discernible standard”

to police partisan gerrymandering.

Id. at 292

(plurality op.).

CONCLUSION

The Court should hold this case pending Gill and

Benisek, then reverse, vacate, or note probable

jurisdiction.

Respectfully submitted,

PHILLIP J. STRACH

PAUL D. CLEMENT

MICHAEL D. MCKNIGHT Counsel of Record

OGLETREE, DEAKINS, ERIN E. MURPHY

NASH SMOAK &

ANDREW C. LAWRENCE

STEWART, P.C.

KIRKLAND & ELLIS LLP

4208 Six Forks Road

655 Fifteenth Street, NW

Suite 1100

Washington, DC 20005

Raleigh, NC 27609

(202) 879-5000

paul.clement@kirkland.com

Counsel for Appellants Robert A. Rucho, David R.

Lewis, Timothy K. Moore, and Philip E. Burger

May 15, 2018