Amicus Curiae Brief — Michael C. Turzai, Speaker of the Pennsylvania House of Representatives, et al., Petitioners v. Gretchen Brandt, et al.
Supreme Court briefJul 25, 2018
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No. 17-1700
In the
Supreme Court of the United States
MICHAEL C. TURZAI, ET AL.,
Petitioners,
v.
GRETCHEN BRANDT, ET AL.,
Respondents.
AMICUS BRIEF FOR AMERICAN CIVIL
RIGHTS UNION IN SUPPORT OF
PETITION FOR WRIT OR CERTIORARI
Scott E. Gessler
Counsel of Record
Steven A. Klenda
KLENDA GESSLER & BLUE LLC
1624 Market St., Suite 202
Denver, CO 80202
(720) 432-5705
sgessler@klendagesslerblue.com
sklenda@klendagesslerblue.com
Attorneys for Amicus Curiae The American
Civil Rights Union
LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................. iii
AMICUS CURIAE BRIEF IN SUPPORT OF
THE PETITION FOR CERTIORARI ....................1
INTEREST OF AMICUS CURIAE .........................1
SUMMARY OF THE ARGUMENT ........................3
ARGUMENT ..............................................................4
I.
THIS COURT MUST DETERMINE
WHETHER A COURT CAN
ACT AS A “LEGISLATURE” UNDER
ARTICLE I, SECTION 4. .............................4
II.
THE PENNSYLVANIA SUPREME
COURT ACTED AS A LEGISLATURE,
NOT A COURT. ............................................6
A.
Two justices campaigned against
Congressional political
gerrymandering and refused to
recuse themselves. ........................... 6
B.
The court abandoned traditional
court procedures to create a new
map out of whole cloth. ..................12
C.
According to its own standards,
the court produced a partisan
gerrymander. ...................................15
i
CONCLUSION ........................................................29
Appendix A, Jan. 26, 2018, Order, League of
Women Voters of Pennsylvania, et al. v. The
Commonwealth of Pennsylvania, et al.,
No. 159 MM 2017 (Pa. 2018) ................................ A-1
Appendix B, Map .................................................. A-5
Appendix C, ACRU Compactness ..................... A-6
Appendix D, ACRU County Splits .................... A-8
Appendix E, ACRU MCD Splits ...................... A-11
Appendix F, ACRU VTD Splits........................ A-17
Appendix G, Chart ............................................. A-23
Appendix H, Chart............................................. A-24
Appendix I, Chart .............................................. A-25
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Arizona State Legislature v. Arizona
Independent Redistricting Com’n,
135 S.Ct. 2652 (2015) .............................................5
Caperton v. A.T. Massey Coal Co., Inc.,
556 U.S. 868 (2009) ..............................................11
Chapman v. Meier,
420 U.S. 1 (1975) ..................................................28
City of Mobile v. Bolden,
446 U.S. 55 (1980) ................................................28
Gaffney v. Cummings,
412 U.S. 735 (1973) ..............................................26
League of United Latin American Citizens
v. Perry,
548 U.S. 399 (2006) ..............................................28
People ex rel. Salazar v. Davidson,
79 P.3d 1221 (Colo. 2003) ............................5, 6, 12
Vieth v. Jubelirer,
541 U.S. 267 (2004) ..............................................28
White v. Regester,
412 U.S. 755 (1973) ..............................................28
iii
Constitutional Authorities
U.S. Const. art. I, § 4......................................... passim
Other Authorities
Cook Political Report (February 20, 2018),
https://www.cookpolitical.com/analysis/h
ouse/pennsylvania-house/newpennsylvania-map-major-boostdemocrats .......................................................23, 25
David Wasserman, New Pennsylvania Map
is a Major Boost for Democrats ...........................25
David Wasserman, Twitter (February 19,
2018), https://twitter.com/Redistrict ...................25
Democratic Supreme Court Candidates
Attend Forum, POLITICSPA,
http://www.politicspa.com/democraticsupreme-court-candidates-attendforum/63228/ (accessed July 23, 2018) ................10
Get to Know the Candidates for State
Supreme Court, LANCASTER ONLINE,
http://lancasteronline.com/news/local/get
-to-know-the-candidates-for-statesupreme-court/article_65c426d4-6d4511e5-b74f-6babb36c03bb.html ..............................9
Judge Candidate Forum, Neighborhood
Networks and MoveOn Philly, https://
www.youtube.com/watch?v=713tnbv55m
U&feature=youtu.be ..............................................8
iv
Nate Cohn, Hundreds of Simulated Maps
Show How Well Democrats Fared in
Pennsylvania, The New York Times ...................21
Nate Cohn, Matthew Bloch, and Kevin
Quealy, The New Pennsylvania
Congressional Map, District by District,
The New York Times ...........................................23
Politico,
https://www.politico.com/story/2018/02/1
9/pennsylvania-redistrict-democratsmidterms-354432 (accessed July 23,
2018) .....................................................................24
State Supreme Court, 90.5 WESA,
http://wesa.fm/post/newly-elected-judgedavid-wecht-his-plans-state-supremecourt#stream/0 .....................................................10
State Supreme Court, Lancaster Online,
http://lancasteronline.com/news/local/get
-to-know-the-candidates-for-statesupreme-court/article_65c426d4-6d4511e5-b74f-6babb36c03bb.html ..........................8, 9
Steven Wolf, Pennsylvania’s
groundbreaking new congressional map
isn’t just nonpartisan—it’s fair............................26
This Pennsylvania Map. How Did It
Happen? The New York Times.......... 14, 22, 24, 26
v
United States Census Bureau, Geographic
Terms and Concepts - Voting Districts,
https://www.census.gov/geo/reference/gtc
/gtc_vtd.html (accessed March 4, 2018) ..............18
Upshot (February 19, 2018),
https://www.nytimes.com/interactive/20
18/02/19/upshot/pennsylvania-newhouse-districts-gerrymandering.html
(accessed July 23, 2018) ......................................23
Upshot (February 21, 2018),
https://www.nytimes.com/2018/02/21/ups
hot/gerrymandering-pennsylvaniademocrats-republicans-court.html
(accessed July 23, 2018) .................... 14, 22, 24, 26
Upshot (February 26, 2018),
https://www.nytimes.com/2018/02/26/ups
hot/democrats-did-better-than-onhundreds-of-simulated-pennsylvaniamaps.html (accessed July 23, 2018) ....................21
Vox (February 21, 2018),
https://www.vox.com/policy-andpolitics/2018/2/21/17032936/pennsylvani
a-congressional-districts-2018 (accessed
July 23, 2018) .......................................................23
www.publicsource.org/forums-put-spotlighton-pa-supreme-court-candidates
(accessed July 23, 2018) ......................................10
vi
No. 17-1700
In the
Supreme Court of the United States
MICHAEL C. TURZAI, ET AL.,
Petitioners,
v.
GRETCHEN BRANDT, ET AL.,
Respondents.
AMICUS CURIAE BRIEF IN SUPPORT OF
THE PETITION FOR CERTIORARI
INTEREST OF AMICUS CURIAE 1
Amicus Curiae American Civil Rights Union
(ACRU) is a non-partisan 501(c)(3) tax-exempt
organization dedicated to protecting the civil rights
of all Americans by publicly advancing a
Constitutional understanding of our essential rights
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. All parties provided written
consent to the submission of this amicus brief.
1
1
and freedoms. It was founded in 1998 by long time
policy advisor to President Reagan, and the architect
of modern welfare reform, Robert B. Carleson.
Carleson served as President Reagan’s chief
domestic policy advisor on federalism, and originated
the concept of ending the federal entitlement to
welfare by giving the responsibility for those
programs to the states through finite block grants.
Since its founding, the ACRU has filed amicus curiae
briefs on various constitutional and election issues in
cases nationwide, including redistricting cases. It
also filed an amicus brief, with a proposed
redistricting plan, before the Pennsylvania Supreme
Court in this case.
The ACRU’s Policy Board sets the ACRU’s
priorities. The Board’s members include some of the
nation’s most distinguished statesmen and
practitioners on matters of election law. The Board’s
members are former U.S. Attorney General Edwin
Meese III; former Assistant Attorney General for
Civil Rights William Bradford Reynolds; former
Assistant Attorney General for the Office of Legal
Counsel Charles J. Cooper; John M. Olin
Distinguished Professor of Economics at George
Mason University Walter E. Williams; former
Ambassador to Costa Rica Curtin Winsor, Jr.; former
Ohio Secretary of State J. Kenneth Blackwell;
former Voting Rights Section attorney, U.S.
Department of Justice, J. Christian Adams; former
Counsel to the Assistant Attorney General for Civil
Rights and former member of the Federal Election
Commission Hans von Spakovsky.
2
SUMMARY OF THE ARGUMENT
The petition for certiorari presents a
straightforward question. Under Article I, Section 4,
may a state court serve as a state “legislature?”
Here, the Pennsylvania Supreme Court took it upon
itself to draw congressional districts for the state. In
doing so, it followed the example of the Colorado
Supreme Court, which previously held that a state
court was a “legislature” under Art. I, § 4. The
Pennsylvania court’s actions were a logical extension
of this earlier state behavior. If allowed to stand,
they will render meaningless the term “legislature”
in Article I, § 4.
In drawing congressional districts
Pennsylvania Supreme Court in fact acted like a
lawmaking body. During the previous statewide
judicial elections, two of the court’s seven members
expressly campaigned for office on a platform that
condemned the legislatively-drawn maps, and those
candidates stated that the court should take action
against what they perceived to be partisan
gerrymandering. But the justices did not recuse
themselves, and instead participated throughout the
court’s mapmaking actions. This behavior is
appropriate for legislators, but not judges.
In addition, the court abandoned traditional
court procedures to draw new congressional maps,
thus acting like a legislature and not a court. It took
extraordinary jurisdiction over this matter, it did not
hear evidence or hold a hearing to determine how
best to draw maps, it hired a special master, and it
3
produced congressional maps without any
explanation or justification. In short, the
Pennsylvania Supreme Court did not act like a court
– rather it acted as a legislative, lawmaking body.
Finally, the court’s map violated the very
principles it articulated in striking down the
legislatively-drawn map. The court received, but
rejected, at least one map that better met the court’s
articulated criteria. The court’s map was an illegal,
extreme partisan outlier, based upon the expert
analysis and “lay commentary” the court used to
strike down the legislature’s map. And the court’s
map contained numerous “ismuthses and tentacles”
that the court previously condemned in the
legislature’s congressional map.
This departure from any articulated legal
principle is explained by a quest to achieve
proportional representation in congressional
districts. The Pennsylvania Supreme Court had no
authority to do this. And while proportional
representation may be a permissible goal for
legislative mapmakers, the Pennsylvania Supreme
Court does not have this lawmaking authority under
Art. I, § 4.
ARGUMENT
I.
THIS COURT MUST DETERMINE
WHETHER A COURT CAN ACT AS A
“LEGISLATURE” UNDER ARTICLE I,
SECTION 4.
4
This case presents a straightforward question:
May a court act as a legislature under U.S. Const.
art. I, § 4? As this court has firmly held,
“redistricting is a legislative function, to be
performed in accordance with the State's
prescriptions for lawmaking.” Arizona State
Legislature v. Arizona Independent Redistricting
Com'n, 135 S.Ct. 2652, 2668 (2015).
Here, the Pennsylvania Supreme Court acted
like a legislative body, not a court that adjudicates
disputes. Pennsylvania Supreme Court justices are
elected by Pennsylvania’s voters. Two justices
specifically campaigned on a platform that rejected
Pennsylvania’s Congressional districts as a partisan
gerrymander, and then they refused to recuse
themselves. The court assumed control of the
mapmaking process, and in developing a map acted
like a legislature, not an adjudicatory body. And the
court itself produced a partisan gerrymander,
according to its own, articulated criteria.
Although the Pennsylvania Supreme Court’s
behavior might be considered an extreme example of
a court wresting control of the mapmaking process
from an elected legislature, in fact this behavior is a
direct and logical outgrowth of People ex rel. Salazar
v. Davidson, 79 P.3d 1221, 1234 (Colo. 2003). There,
the Colorado Supreme Court held that “the word
‘legislature’ in Article I” included “any means
permitted by state law,” and that because state
courts “have the authority to evaluate the
constitutionality of redistricting laws,” the term
“legislature” in the Elections Clause “encompasses
5
court orders.” Id. at 1232.
In Salazar, there was no question that the
lower Colorado trial court properly imposed a
congressional redistricting plan; the Colorado
General Assembly had deadlocked and been unable
to pass a map, thus requiring the court to remedy
the resulting equal protection violation. Accordingly
the issue in Salazar was whether the Colorado
Supreme Court could prohibit the Colorado General
Assembly from subsequently drawing a new map
after it resolved the deadlock.
By contrast, here the Pennsylvania Supreme
Court created a new map from whole cloth, removing
control from the Pennsylvania General Assembly
and acting like a lawmaking body, not a court.
Accordingly, the Pennsylvania Supreme Court’s
actions raise a critical and timely question: Does Art.
I, Section 4, allow a state supreme court to act as a
legislature when drawing legislative districts? If
allowed to stand, the Pennsylvania Supreme Court’s
actions will signal to all state Supreme Courts that
they have unfettered authority to implement
redistricting plans. In other words, the Pennsylvania
Supreme Court’s actions erase any meaning to the
word “legislature” in Art. I, § 4.
II.
THE PENNSYLVANIA SUPREME
COURT ACTED AS A LEGISLATURE,
NOT A COURT.
A.
Two justices campaigned against
Congressional political
6
gerrymandering and refused to
recuse themselves.
Two of the seven justices on the Pennsylvania
Supreme Court — Justice Wecht and Justice
Donohue — were elected to the Pennsylvania
Supreme Court by statewide vote in November,
2016. These two justices explicitly campaigned on
statements that (1) gerrymandered districts violated
the constitution, and (2) Pennsylvania’s
congressional districts were illegally gerrymandered.
These campaign statements – followed by prompt
action to implement their campaign platforms –
show that Justices Wecht and Donohue acted like
legislators, not judges.
Justice Wecht was particularly aggressive in
his comments; he frequently and specifically
disapproved of Pennsylvania’s congressional
districts, and he indicated that the Pennsylvania
Supreme Court could remedy his perceived problem.
Several of his public statements amply demonstrate
his campaign platform:
There are a million more democrats in
this Commonwealth – I want to let that
sink in – a million more Democrats in
this Commonwealth, but there’s a
Republican state house, there’s a
Republican state senate, and there are
only five Democrats in the Congress, as
opposed to 13 Republicans. Think about
it. Do we need anew Supreme Court? I
think you know the answer.
7
Spring 2015 Judge Candidate Forum, Neighborhood
Networks and MoveOn Philly, https://
www.youtube.com/watch?v=713tnbv55mU&feature=
youtu.be, at time code 18:00. (accessed July 23,
2018).
In 2014, I believe, there were at least
more than 200,000 votes for Democratic
candidates for U.S. Congress than
Republicans and yet we elected 13
Republicans and five Democrats, and
there are more than 1,000,000 more
Democrats . . . . I’m not trying to be
partisan, but I have to answer your
question, frankly. We have more than a
million more democrats in
Pennsylvania, we have a state senate
and a state house that are
overwhelmingly Republican. You
cannot explain this without partisan
gerrymandering.
Get to Know the Candidates for State Supreme
Court, Lancaster Online,
http://lancasteronline.com/news/local/get-to-knowthe-candidates-for-state-supremecourt/article_65c426d4-6d45-11e5-b74f6babb36c03bb.html, at time code 38:15 (accessed
July 23, 2018).
Right nearby here, by way of just one
example, Montgomery County, a county
or two over here, is represented in
8
pieces by I think five different members
of Congress. That’s unbelievable. So I
don’t know and I can’t tell you what the
map would be, and it’s not for me to
say, and I don’t know how I would rule
on any given map, but I can tell you the
Constitution says “one person, one
vote,” and it does not allow for
unconstitutional gerrymandering.
Get to Know the Candidates for State Supreme
Court, Lancaster Online,
http://lancasteronline.com/news/local/get-to-knowthe-candidates-for-state-supremecourt/article_65c426d4-6d45-11e5-b74f6babb36c03bb.html, at time code 39:30 (accessed
July 23, 2018).
Stop this insane gerrymandering. …
And we are one of the most
gerrymandered states in the nation.
And people who are disenfranchised by
this gerrymandering abomination
eventually lose faith and grow more
apathetic, why, because their voting
power has been vastly diluted and they
tend to figure “well, I can’t make a
difference, I’ll just stay home.”
Get to Know the Candidates for State Supreme
Court, LANCASTER ONLINE,
http://lancasteronline.com/news/local/get-to-knowthe-candidates-for-state-supremecourt/article_65c426d4-6d45-11e5-b74f9
6babb36c03bb.html, at time code 35:58 (accessed
July 23, 2018).
And Judge Wecht continued with this
campaign theme immediately following his election,
stating “[e]xtreme gerrymandering is an
abomination and antithetical to the concept of one
person, one vote.” Sean Ray, Newly Elected Judge
David Wecht on His Plans for the State Supreme
Court, 90.5 WESA, http://wesa.fm/post/newlyelected-judge-david-wecht-his-plans-state-supremecourt#stream/0, at time code 32:25 (accessed July 23,
2018).
While the readily-accessible record of Justice
Donohue’s campaign statements is less extensive
than Justice Wecht’s, she also made explicit
statements and promises. For example, at a League
of Women Voters’ Forum, she promised that
“gerrymandering will come to an end” if she and
other Democrat judges were elected. Eric Holmberg,
Forums put spotlight on PA Supreme Court
candidates, at www.publicsource.org/forums-putspotlight-on-pa-supreme-court-candidates (accessed
July 23, 2018). Likewise, during her campaign she
publicly stated that “gerrymandering
disenfranchises the people.” Nathan Kanuch,
Democratic Supreme Court Candidates Attend
Forum, POLITICSPA,
http://www.politicspa.com/democratic-supremecourt-candidates-attend-forum/63228/ (accessed July
23, 2018)
These statements were no small matter.
10
Justices Wecht and Donohue discussed congressional
gerrymandering, stated that the current
congressional districts were gerrymandered, and
indicated (or promised) that the Pennsylvania
Supreme Court could remedy the perceived problem.
These campaign statements were no different than
explicit statements by judicial nominees indicating
how they would rule in a specific controversy.
Furthermore, several of these statements were made
at a forum hosted by the League of Women Voters,
who then filed this lawsuit and claimed political
gerrymandering.
Justices Wecht and Donohue also played a
critical role in these proceedings. For example, on
November 9, 2017, the Pennsylvania Supreme Court
assumed jurisdiction over this matter when it voted,
four to three, to grant the League of Women Voters’
application for extraordinary jurisdiction. Without
Wecht and Donohue, that application would have
been denied.
In failing to recuse themselves, it seems clear
that both judges violated the Due Process standards
set forth in Caperton v. A.T. Massey Coal Co., Inc.,
556 U.S. 868 (2009). In Caperton, a West Virginia
Supreme Court Justice was required to recuse
himself, because large electoral spending in the
“judicial election process” created a “risk of actual
bias.” Id. at 886. Here, campaign statements and
promises in the “judicial election process” did more
than create a risk — they demonstrated actual bias.
To be sure, the Petition for Writ of Certiorari
11
does not ask this Court to review a Due Process
claim. But, importantly for this case, the campaign
statements and failure to recuse demonstrate that
Justices Wecht and Donohue acted like legislators,
not judges. The justices made explicit campaign
statements and promises, and then promptly went
about fulfilling those promises. This behavior, of
course, is absolutely proper for elected legislators,
who are expected to enact certain policies that they
articulate during a political campaign. But the
Pennsylvania Supreme Court is not, under Article I,
Section 4, a legislature. By the margin of their votes,
however, Justices Wecht and Donohue transformed
the Pennsylvania Supreme Court into a superlegislature for redistricting.
B.
The court abandoned traditional
court procedures to create a new
map out of whole cloth.
Normally, appellate courts such as the
Pennsylvania Supreme Court leave fact-finding and
the development of a redistricting plan up to the
trial court. Even in Salazar, the Colorado Supreme
Court did not itself create a map, but rather
endorsed the map developed by the trial court. But
here, the Pennsylvania Supreme Court seized
control of the mapmaking process to an alarming
extent. It exercised extraordinary jurisdiction,
articulated wholly-new legal standards, and then
promptly used those legal standards to develop its
own map — without hearing evidence, without
allowing parties to introduce evidence, and without
allowing parties to respond to evidence, argument,
12
and without allowing parties meaningful input into
the court’s reasoning process.
First, the court eagerly assumed control of the
mapmaking process. Following an application from
petitioners, the Pennsylvania Supreme Court
exercised “extraordinary jurisdiction” over the
proceeding. Order, February 7, 2018, Petition for
Writ of Certiorari, Turzai, No. 17-1700, App. 39. It
did not allow the district court to develop a remedial
map. It did not allow extensive party input into the
new remedial map. Instead, it decided to develop an
original map, from scratch.
Second, even though the court decided to
create a map itself, it did not accept evidence — such
as testimony or expert analysis — to develop a
record to support its decisions. To be sure, the court
accepted proposals. But this is much different than
developing a record based on admissible evidence,
subject to cross examination and close scrutiny.
Courts do not — and should not — simply ask for
proposals and make decisions absent evidence. It is,
however, within a legislature’s plenary power to do
just that.
If the Pennsylvania Supreme Court had
chosen to act like a court – rather than a legislature
— it would have remanded to the lower trial court to
develop a remedial plan based upon evidence and the
court’s newly articulated partisan gerrymandering
standards. Indeed, the Pennsylvania Supreme Court
itself recognized that the commonwealth court was
capable of moving quickly – that it worked with
13
“commendable speed, thoroughness, and efficiency”
to develop a record for the gerrymandering claims.
Order, February 7, 2018, Petition for Writ of
Certiorari, Turzai, No. 17-1700, App. 40. That same
trial court could — and should — have held
appropriate hearings to develop a map, which the
Pennsylvania Supreme Court could then review for
adherence to legal standards.
Lastly, the Court refused to explain how it
arrived at its map, beyond saying it was “superior or
comparable” to other maps. It did not explain which
parties’ or amici briefs it found helpful. It did not
explain how its map was “comparable” to others. It
did not explain why it made certain political choices
and not others. And it did not explain why it arrived
at the map it did. This is particularly surprising in a
high-profile, important and controversial case
involving 18 congressional seats.
Creating even more suspicion, however, the
Pennsylvania court barred its special master from
even discussing the map he drew for the court. Nate
Cohn, Democrats Didn’t Even Dream of This
Pennsylvania Map. How Did It Happen? The New
York Times: The Upshot (February 21, 2018),
https://www.nytimes.com/2018/02/21/upshot/gerryma
ndering-pennsylvania-democrats-republicanscourt.html (last visited on March 4, 2018). This has
thrust litigants and the American public into the
position of former Sovietologists, searching buried
sentences in the latest issue of Pravda to infer the
true motives behind a decision.
14
Overall, these flaws are not minor procedural
errors. They go to the heart of what a court system
should do. The Pennsylvania Supreme Court should
have articulated legal standards for litigants and the
trial court. A trial court should have taken those
standards, developed evidence, and crafted a
remedy. Then the Pennsylvania Supreme Court
should have reviewed that remedy for legal error.
But instead, this court eagerly short-circuited the
very procedures and policies that result in credible
adjudication and engender public respect for our
courts. It then imposed a map, without evidence,
without explanation, and without legal authority.
C.
According to its own standards, the
court produced a partisan
gerrymander.
According to its own standards, the
Pennsylvania Supreme Court produced a partisan
gerrymander that starkly favored one political party.
This can be demonstrated three ways. First, it
rejected at least one map that better met its own
articulated standards. Second, the court’s map failed
its own expert analysis. And third, the court relied
on lay commentary, which overwhelmingly
demonstrates a partisan gerrymander. Ultimately,
the court’s goal to impose proportional
representation explains this partisan gerrymander.
1.
The court rejected at least
one map that better met its
articulated standards.
15
The court’s map violated its articulated
standards, by failing to meet its own standards for
creating a new map. According to the Pennsylvania
Supreme Court:
any congressional districting plan shall
consist of: congressional districts
composed of compact and contiguous
territory; as nearly equal in population
as practicable; and which do not divide
any county, city, incorporated town,
borough, township, or ward, except
where necessary to ensure equality of
population.
Order, January 22, 2018, Petition for Writ of
Certiorari, Turzai, No. 17-1700, App. 209.
Accordingly the court required the parties to submit
the following relevant information:
a. A report detailing the compactness
of the districts according to each of
the following measures: Reock;
Schwartzberg; Polsby-Popper;
Population Polygon; and Minimum
Convex Polygon.
b. A report detailing the number of
counties split by each district and
split in the plan as a whole.
c. A report detailing the number of
municipalities split by each district
and the plan as a whole.
d. A report detailing the number of
16
precincts split by each district and
the plan as a whole.
Order, January 26, 2018, Petition for Writ of
Certiorari, Turzai, No. 17-1700, Appendix A, A-3-4.
In its order dated February 19, 2018, the
Pennsylvania Supreme Court stated that the
remedial map is “superior or comparable” to all
plans submitted by the parties, intervenors, and
amici. Order, February 19, 2018, Petition for Writ of
Certiorari, Turzai, No. 17-1700, App. 234. But ACRU
respectfully disagrees. The court produced a map
that did not optimize its traditional redistricting
criteria, as demonstrated by comparing the court’s
map to the map submitted by ACRU in its amicus
brief before the Pennsylvania Supreme Court.
Appendix B, A-5.
In developing its map, ACRU did not include
any political or partisan data. It completely ignored
whether voters were Republicans, Democrats, or
independents. As a result, the ACRU map effectively
optimized the court’s published criteria, and it
outperforms the court’s map. Both the ACRU and
court maps achieved population equality and
contiguity. But in the critical factors — compactness
and splits of political subdivisions — the ACRU map
was plainly a better map.
First, with respect to compactness tests, the
ACRU proposal outperformed the court’s map on
four out of five measures, when taking the average of
all districts. ACRU’s map scores higher on the two
17
most widely accepted measures of compactness
(Polsby-Popper and Roeck), scores higher on the two
polygon-based measures (Population Polygon and
Minimum Convex Polygon) and scores slightly lower
on the perimeter based test (Schwartzberg), as
shown by the following chart (better scores are
highlighted in bold):
Compactness Test
Polsby-Popper
Roeck
Population Polygon
Minimum Convex
Polygon
Schwartzberg
Court
Map
Average
0.3344
0.4583
0.7433
0.7911
ACRU
Map
Average
0.3722
0.4694
0.7789
0.8128
1.6672
1.5761
These measurements take the average of each
test, and importantly four out of five tests show that
ACRU’s map better met the court’s criteria.
Second, the ACRU map also scores better with
respect to political subdivision splits. The ACRU
map has fewer overall splits; it splits fewer
municipalities and Voting Districts. 2 The court plan
2 “Voting Districts (VTDs) refer to the generic name for
geographic entities, such as precincts, wards, and election
districts, established by state governments for the purpose of
conducting elections.” United States Census Bureau,
Geographic Terms and Concepts - Voting Districts,
https://www.census.gov/geo/reference/gtc/gtc_vtd.html (accessed
18
split one less county than the ACRU map, as shown
by the following chart (better scores are highlighted
in bold):
Political
Subdivision
County
Municipalities
Voting Districts
Total
Number of
splits, court
map
14
19
33
66
Number
splits,
ACRU map
15
17
17
49
To be fair, the court in its order argues that it
only split 13 counties. Order, February 19, 2018,
Petition for Writ of Certiorari, Turzai, No. 17-1700,
App. 233. This does not, however, change the above
analysis. Overall, the ACRU map has substantially
fewer total splits, outperforming the court’s plan.
2.
The court’s map failed its
own expert analysis.
The Pennsylvania Supreme Court relied
heavily on the analysis of Dr. Jowei Chen to strike
down the Pennsylvania General Assembly’s
redistricting map. According to the court, “[p]erhaps
the most compelling evidence concerning the 2011
Plan derives from Dr. Chen’s expert testimony.”
Order, February 7, 2018, Petition for Writ of
Certiorari, Turzai, No. 17-1700, App. 154. Briefly
stated, Dr. Chen ran two simulated series of 500
redistricting plans each, one of which used only the
March 4, 2018).
19
“traditional criteria” of population equality,
compactness and minimization of county and
municipality splits. (The other simulation included
incumbency protection). Order, February 7, 2018,
Petition for Writ of Certiorari, Turzai, No. 17-1700,
App. 48. From the first simulated series, Dr. Chen
answered three questions:
(1) whether partisan intent was the
predominant factor in the drawing of
the Plan; (2) if so, what was the effect of
the Plan on the number of
congressional Democrats and
Republicans elected from Pennsylvania;
and (3) the effect of the Plan on the
ability of the 18 individual Petitioners
to elect a Democrat or Republican
candidate for congress from their
respective districts.
Order, February 7, 2018, Petition for Writ of
Certiorari, Turzai, No. 17-1700, App. 47-48.. The
court rejected the 2011 legislative map because it
was an extreme outlier that advantaged
Republicans.
But the court’s own plan also fails under Dr.
Chen’s analysis, because independent analysis
showed that the plan failed Dr. Chen’s second and
third prong. With respect to the second prong, the
court’s map produced “overall Democratic
performance” that “arguably would have been better
than” every single one of Dr. Chen’s simulations, as
shown by the following chart (the court’s plan is
20
labeled “adopted plan”):
See Chart, Appendix G, A-23.
Nate Cohn, Hundreds of Simulated Maps Show How
Well Democrats Fared in Pennsylvania, The New
York Times: The Upshot (February 26, 2018),
https://www.nytimes.com/2018/02/26/upshot/democra
ts-did-better-than-on-hundreds-of-simulatedpennsylvania-maps.html (accessed July 23, 2018).
And with respect to Dr. Chen’s third prong,
the same analysis shows that the court’s plan
resulted in a greater number of Democratic
congressional victories than 499 out of 500 of Dr.
Chen’s simulations:
See Chart, Appendix H, A-24.
Id.
Even though the court relied heavily on Dr.
Chen’s statistical analysis to strike down the
legislature’s map, it did not use that same analysis
for its own map — a map that fails under its own
standards.
3.
Other court standards — “lay
examination” and “isthmuses
and tentacles” — show a
partisan gerrymander.
In addition to relying on Dr. Chen’s analysis,
the court noted that “Dr. Chen’s testimony in this
21
regard comports with a lay examination of the Plan,”
Order, February 7, 2018, Petition for Writ of
Certiorari, Turzai, No. 17-1700, App. 155-156. By
that same standard, the conclusion that the court
enacted a Democratic gerrymander “comports with
lay examination.” But that same “lay examination”
has strongly and consistently condemned or praised
court’s map for heavily tilting the playing field to
create a partisan map.
First, the court’s map provides a better
partisan advantage than the partisans themselves
requested. “[T]he new map is better for Democrats —
by nearly every measure — than the maps that
Democrats themselves proposed.” Nate Cohn,
Democrats Didn’t Even Dream of This Pennsylvania
Map. How Did It Happen? The New York Times: The
Upshot (February 21, 2018),
https://www.nytimes.com/2018/02/21/upshot/gerryma
ndering-pennsylvania-democrats-republicanscourt.html (accessed July 23, 2018). Indeed, the
following chart graphically illustrates how the court
gifted an unexpected windfall to Democratic
partisans:
See Chart, Appendix I, A-25.
Id.
Second, numerous commentators and articles
have endorsed the identical conclusion — that the
court’s map greatly helps Democrats;
•
“And the new map is positively fantastic news
22
for Democrats in their effort to take back the
House this fall,” Andrew Prokop, What
Pennsylvania’s new congressional map means
for 2018, Vox, (February 21, 2018),
https://www.vox.com/policy-andpolitics/2018/2/21/17032936/pennsylvaniacongressional-districts-2018 (accessed July 23,
2018).
•
“Democrats couldn’t have asked for much
more from the new map. It’s arguably even
better for them than the maps they proposed
themselves.” Nate Cohn, Matthew Bloch, and
Kevin Quealy, The New Pennsylvania
Congressional Map, District by District, The
New York Times: The Upshot (February 19,
2018),
https://www.nytimes.com/interactive/2018/02/
19/upshot/pennsylvania-new-house-districtsgerrymandering.html (accessed July 23,
2018).
•
“The map, drawn by a court-appointed special
master, doesn't just undo the gerrymander
that's produced a 13-5 seat GOP edge since
2012. It goes further, actively compensating
for Democrats' natural geographic
disadvantage in the state.” David Wasserman,
New Pennsylvania Map Is a Major Boost for
Democrats, The Cook Political Report,
February 20, 2018,
https://www.cookpolitical.com/analysis/house/
pennsylvania-house/new-pennsylvania-mapmajor-boost-democrats (accessed July 23,
23
2018)
•
“The new map left Democrats
celebrating on Monday.” Elena Schneider,
New Pennsylvania map gives Democrats big
boost in midterms, Politico,
https://www.politico.com/story/2018/02/19/pen
nsylvania-redistrict-democrats-midterms354432 (accessed July 23, 2018).
Finally, the Pennsylvania court criticized the
2011 legislative map because it “often contains
‘isthmuses’ and ‘tentacles,’” Order, February 7, 2018,
Petition for Writ of Certiorari, Turzai, No. 17-1700,
App. 157. Yet the court’s map is guilty of the same
problems. “Every potentially competitive Republicanheld district juts out to add Democratic areas, like
adding York to the 10th District, Lansdale to the
First District, Reading to the Sixth District,
Stroudsburg to the Seventh District, South
Philadelphia to the Fifth District, or Mount Lebanon
and Penn Hills to the 17th.” Nate Cohn, Democrats
Didn’t Even Dream of This Pennsylvania Map. How
Did It Happen?, The New York Times: The Upshot
https://www.nytimes.com/2018/02/21/upshot/gerryma
ndering-pennsylvania-democrats-republicanscourt.html (accessed July 23, 2018) (emphasis
supplied).
4.
The quest for proportional
representation explains the
court’s partisan
gerrymander.
24
Pennsylvania currently has 18 congressional
seats, and the universal consensus is that the court’s
map does not merely undo a perceived political
gerrymander. Rather:
[i]t goes further, actively compensating
for Democrats' natural geographic
disadvantage in the state. Under the
new lines, Democrats have an excellent
chance to win at least half the state's 18
seats.
David Wasserman, New Pennsylvania Map is a
Major Boost for Democrats, The Cook Political
Report (February 20, 2018),
https://www.cookpolitical.com/analysis/house/pennsy
lvania-house/new-pennsylvania-map-major-boostdemocrats (accessed Juy 23, 2018). As the same
analyst made clear, the court map:
is a ringing endorsement of the
‘partisan fairness’ doctrine: that parties
should be entitled to same proportion of
seats as votes. However, in PA (and
many states), achieving that requires
conscious pro-Dem mapping choices.
David Wasserman, Twitter, (February 19, 2018),
https://twitter.com/Redistrict.
Even those who support the court’s map
readily recognize that it imposes proportional
representation on Pennsylvania’s congressional
delegation:
25
But most interestingly, the court
appears to have deliberately adopted a
map that should give both parties a
shot at winning an equitable number of
seats, as befits Pennsylvania’s swingstate status.
Steven Wolf, Pennsylvania's groundbreaking new
congressional map isn't just nonpartisan—it's fair,
The Daily Kos (February 19, 2018). And those who
neither cheer nor condemn the court’s map have also
concluded that the court imposed proportional
representation; “Over all, the new court-ordered map
comes very close to achieving partisan symmetry in
an evenly divided state.” Nate Cohn, Democrats
Didn’t Even Dream of This Pennsylvania Map. How
Did It Happen? The New York Times: The Upshot
(February 21, 2018),
https://www.nytimes.com/2018/02/21/upshot/gerryma
ndering-pennsylvania-democrats-republicanscourt.html (accessed July 23, 2018).
The court’s imposition of proportional
representation was a political decision. A legislature
may freely develop a redistricting map that achieves
proportional representation (provided the map does
not run afoul of federal law). Indeed, a state may
“allocate political power to the parties in accordance
with their voting strength.” Gaffney v. Cummings,
412 U.S. 735, 754 (1973). These types of political
compromises and political decisions often occur
within state legislatures, because redistricting is
fundamentally a political process, subject to the
26
political give and take in our representative
democracy.
To be sure, some believe proportional
representation is a worthy goal, and that all
redistricting should reflect that principle. Others
firmly believe that local communities of interest —
particularly those expressed within political
subdivisions — should take precedence over a
statewide proportional scheme. Ultimately, any
governing body must make these policy choices and
resolve conflicting values. And elected legislatures
do just that. Voters send representatives that share
their policy objectives, legislators must often
compromise with one another, and elected
representatives face accountability through frequent,
local district elections. In short, whether a state
should redistrict to achieve proportional
representation is an issue for the legislature, not a
court.
By contrast, courts do not have any legal
authority to impose proportional representation,
absent guidance from the legislature. Here, neither
the Pennsylvania constitution nor the Pennsylvania
statute gives any court authority to impose
proportional representation through the redistricting
process. The Pennsylvania Supreme Court itself
recognized that the state constitution provided no
standards for redistricting, Order, February 7, 2018,
Petition for Writ of Certiorari, Turzai, No. 17-1700,
App. 146 and it could point to no statute that
provides such standards.
27
Further, this Court’s decisions make clear
that federal law provides no authority to allow a
court to impose proportional representation. Plainly
stated, a group is not constitutionally entitled to a
redistricting map that grants it “legislative seats in
proportion to its voting potential.” White v. Regester,
412 U.S. 755, 765-66 (1973). Likewise, the
Constitution “nowhere says that farmers or urban
dwellers, Christian fundamentalists or Jews,
Republicans or Democrats, must be accorded
political strength proportionate to their numbers.”
Vieth v. Jubelirer, 541 U.S. 267, 288 (2004) (plurality
op.); see also League of United Latin American
Citizens v. Perry, 548 U.S. 399, 419 (2006) (plurality
op.) (“there is no constitutional requirement of
proportional representation . . . .”); City of Mobile v.
Bolden, 446 U.S. 55, 75-76 (1980) (“[t]he Equal
Protection Clause of the Fourteenth Amendment
does not require proportional representation as an
imperative of political organization. . . . [P]olitical
groups [do not] themselves have an independent
constitutional claim to representation . . . .”);
Chapman v. Meier, 420 U.S. 1, 17 (1975) (“there is no
constitutional requirement of proportional
representation . . . .”).
The Pennsylvania Supreme Court had no
state constitutional or state statutory authority to
impose proportional representation. It had no federal
authority to impose proportional representation. In
short, it acted like a legislature, by making policy
and political choices to implement a proportional
representation scheme.
28
CONCLUSION
This court should accept the Petition for Writ
of Certiorari and resolve these critical issues
involving the separation of judicial and legislative
powers.
2018,
Respectfully submitted this 25th day of July
Scott E. Gessler
Counsel of Record
Steven A. Klenda
KLENDA GESSLER & BLUE LLC
1624 Market St., Suite 202
Denver, CO 80202
(720) 432-5705
sgessler@klendagesslerblue.com
sklenda@klendagesslerblue.com
Attorneys for Amicus Curiae
The American Civil Rights Union
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.