Opposition Brief — Michael C. Turzai, Speaker of the Pennsylvania House of Representatives, et al., Petitioners v. Gretchen Brandt, et al.

Supreme Court briefSep 24, 2018

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No. 17-1700

IN T H E

Supreme Court of the United States

MICHAEL C. TURZAI, ET AL.,

Petitioners,

GRETCHEN BRANDT, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Pennsylvania

BRIEF FOR RESPONDENTS GRETCHEN

BRANDT ET AL. IN OPPOSITION TO

CERTIORARI

DAVID P. GERSCH

MARY M. MCKENZIE

JOHN A. FREEDMAN

MICHAEL CHURCHILL

R. STANTON JONES

BENJAMIN D. GEFFEN

ELISABETH S. THEODORE

PUBLIC INTEREST LAW

Counsel of Record

CENTER

1709 Benjamin Franklin DANIEL F. JACOBSON

ARNOLD & PORTER

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Philadelphia, PA 19103 601 Mass. Ave., NW

Washington, DC 20001

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elisabeth.theodore

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QUESTIONS PRESENTED

The questions presented are:

1. Whether state statutes establishing congressional districts are subject to state constitutional

provisions, as construed by state courts.

2. Whether state courts may adopt remedial congressional districting plans, including when the prior

plan violated the state constitution and the state legislature failed to adopt a remedy of its own.

3. Whether petitioners are estopped from arguJOH UIBU TUBUF DPVSUT MBDL BVUIPSJUZ VOEFS UIF mSTU

two questions because petitioners have argued the

polar opposite of their current positions, including to

this Court.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES .......................................iv

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

COUNTER-STATEMENT OF THE CASE.................3

A. Pennsylvania’s 2011 Congressional

Districting Map ...........................................3

B. The Pennsylvania State Court

Proceedings Below .......................................5

REASONS TO DENY THE PETITION .................... 11

The Petition Does Not Raise Any

Substantial Federal Question ........................ 11

A. State Statutes Establishing

Congressional Districts Are Subject to

State Constitutional Provisions, as

Construed By State Courts ....................... 11

B. This Court Cannot Second-Guess

State High Court Interpretations of

State Constitutions ................................... 17

C. The Elections Clause Does Not Strip

State Courts of Authority To Remedy

Violations of State Constitutions.............. 20

II.

There Is No Split of Authority ....................... 25

III.

This Petition Presents a Poor Vehicle for

Resolving Any Elections Clause Question ..... 28

A. Petitioners’ Elections Clause

Arguments Are Doubly Estopped ............. 28

B. There Are Other Major Vehicle

Problems .................................................... 34

C. This Court Should Not Intervene in

Disputes Between Branches of State

Government ............................................... 35

CONCLUSION .......................................................... 36

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Agre v. Wolf,

138 S. Ct. 2576 (2018) .......................................... 33

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

135 S. Ct. 2652 (2015) .................................. passim

Arizona v. Evans,

514 U.S. 1 (1995) .................................................... 1

State ex rel. Beeson v. Marsh,

34 N.W.2d 279 (Neb. 1948) .................................. 27

Branch v. Smith,

538 U.S. 254 (2003) ............................ 14, 23, 24, 25

Carroll v. Becker,

285 U.S. 380 (1932) .................................. 13, 20, 25

Colegrove v. Green,

328 U.S. 549 (1946) .............................................. 15

Colorado General Assembly v. Salazar,

541 U.S. 1093 (2004) ...................................... 27, 28

Cotlow v. Growe,

C8-91-985 (Minn. Special Redistricting

Panel Apr. 15, 1992) ............................................ 21

Commonwealth ex rel. Dummit v.

O’Connell,

181 S.W.2d 691 (Ky. 1944)............................. 26, 27

Emerick v. Harris,

1 Binn. 416, 1808 WL 1521 (Pa. 1808) ................ 14

Growe v. Emison,

507 U.S. 25 (1993) ........................................ passim

Hortonville Joint Sch. Dist. No. 1 v.

Hortonville Educ. Ass’n,

426 U.S. 482 (1976) .............................................. 17

Koenig v. Flynn,

285 U.S. 375 (1932) .................................. 13, 20, 25

League of Women Voters of Fla. v. Detzner,

172 So. 3d 363 (Fla. 2015) ............................. 16, 26

Mellow v. Mitchell,

607 A.2d 204 (Pa. 1992) ....................................... 19

In re Michael C. Turzai,

No. 17-631 (2017) ................................................. 29

Minnesota v. Nat’l Tea Co.,

309 U.S. 551 (1940) ................................................ 1

Moran v. Bowley,

179 N.E. 526 (Ill. 1932) ........................................ 26

New Hampshire v. Maine,

532 U.S. 742 (2001) ............................ 28, 31, 32, 33

Parsons v. Ryan,

60 P.2d 910 (Kan. 1936) ....................................... 27

Patchak v. Zinke,

138 S. Ct. 897 (2018) ............................................ 15

PG Publishing Co. v. Aichele,

902 F. Supp. 2d 724 (W.D. Pa. 2012) .................. 27

Raines v. Byrd,

521 U.S. 811 (1997) .............................................. 35

Reynolds v. Sims,

377 U.S. 533 (1964) .............................................. 18

Scott v. Germano,

381 U.S. 407 (1965) ........................................ 22, 29

Smiley v. Holm,

285 U.S. 355 (1932) ...................................... passim

Smith v. Clark,

189 F. Supp. 2d 548 (S.D. Miss 2002) ................. 23

Wesberry v. Sanders,

376 U.S. 1 (1964) ............................................ 15, 16

William Penn Sch. Dist. v. Pa. Dep’t of

Educ.,

170 A.3d 414 (Pa. 2017) ....................................... 18

Wood v. State,

142 So. 747 (Miss. 1932) ...................................... 26

Statutes and Constitutional Provisions

42 Pa. Cons. Stat. § 726 ........................................ 5, 23

2 U.S.C. § 2a(c) .............................................. 14, 24, 25

2 U.S.C. § 2c............................................................... 24

2 U.S.C. § 2a(c) .......................................................... 14

Ariz. Const. art. 4, pt. 2, § 1 ...................................... 16

Cal. Const. art. 21, § 2 ............................................... 16

Fla. Const. art. III, § 20 ............................................. 16

Iowa Const. art. III, § 37 ........................................... 16

Mo. Const. art. 3, § 45 ............................................... 16

N.Y. Const. art. 3, § 4 ................................................ 16

Ohio Const. art. XIX, §§ 1-2 ...................................... 16

Pa. Const. art. I, § 5........................................... passim

U.S. Const. amends. I, XIV ....................................... 18

U.S. Const. art. I, § 4 ............................... 14, 16, 20, 27

Va. Const. art. 2, § 6 .................................................. 16

Wash. Const. art. 2, § 43 ........................................... 16

Wyo. Const. art. 3, § 49 ............................................. 16

vii

INTRODUCTION

The Pennsylvania Supreme Court struck down

Pennsylvania’s 2011 congressional map on the “sole

basis” that it violates the Pennsylvania Constitution’s Free and Equal Elections Clause—which has

no counterpart in the U.S. Constitution—and ordered

a remedial map for the 2018 elections. Petitioners’

serial emergency applications asking this Court to

stay the state court’s orders were denied. Since then,

Pennsylvania conducted its primary elections under

the state court’s remedial map in May 2018, and that

map will be used in the November 2018 general elections.

Petitioners now ask this Court to grant certiorari

and order the reinstatement of a map that violates

the Pennsylvania constitution for use in Pennsylvania’s 2020 elections. The Court should deny review,

just as it denied two stays. It is hornbook law that

this Court cannot review decisions of state courts

construing state law. State courts are “free to serve

as experimental laboratories,” Arizona v. Evans, 514

U.S. 1, 8 (1995), and “[i]t is fundamental that state

courts be left free and unfettered by [this Court] in

interpreting their state constitutions,” Minnesota v.

Nat’l Tea Co., 309 U.S. 551, 557 (1940). Petitioners

urge this Court to cast aside these fundamental principles and intervene in this state-court, state-law

case. The Court should not do so. There is no partisan gerrymandering exception to federalism.

Petitioners’ ostensible hook for federal intervention is a theory of the U.S. Constitution’s Elections

Clause that this Court has squarely rejected in decisions dating back nearly a century. Petitioners ask

this Court to grant certiorari to hold that state laws

creating congressional districts need not comply with

“substantive” state constitutional provisions. This

radical theory is inconsistent with basic federalism

principles and this Court’s longstanding precedent,

and would upend constitutional provisions in at least

11 states imposing “substantive” restrictions on congressional redistricting. Petitioners’ alternative suggestions—that this Court should invent a novel

distinction between “explicit” and “non-explicit” constitutional provisions, or should hold that state

courts may identify but may not remedy state constitutional violations—are no more serious and raise no

important questions.

Unsurprisingly, there is no division or confusion

among lower courts on the basic issues here, contrary

to Petitioners’ assertions. Petitioners’ citation to Civil War-era decisions predating this Court’s authoritative interpretations of the Elections Clause does not

evidence a split warranting certiorari. There is simply no need to grant certiorari to decide whether state

courts may impose state constitutional provisions on

state laws creating congressional districts, or may

remedy congressional plans that do violate the state

constitution. It is settled that they can.

This Court need not take our word for it. For

months, Petitioners told federal courts in separate

suits challenging the 2011 map that, under settled

precedent, the Pennsylvania state courts in this very

case had the power to review the plan for stateconstitutional defects and to issue a remedial plan,

and that the federal courts had to defer. Petitioners

persuaded a federal court to grant a stay of parallel

litigation based on these arguments. Petitioners are

estopped from now challenging the state court’s

judgment on the theory that state courts have no

power in this realm. Estoppel and other defects

make this case a poor vehicle to review either of the

questions presented, even if those questions otherwise merited this Court’s review, which they do not.

COUNTER-STATEMENT OF THE CASE

A. Pennsylvania’s 2011 Congressional Districting Map

1. In the 2010 general elections, Republicans

took control of the Pennsylvania House, retained control of the Pennsylvania Senate, and won the governorship. App. 8. This gave Republicans exclusive

control over Pennsylvania’s congressional redistricting following the 2010 census. Working in secret,

Republican mapmakers in Pennsylvania’s legislature

used past election results to calculate partisanship

scores for each precinct, municipality, and county in

Pennsylvania, and created “redistricting maps revealing partisan scoring down to the precinct level.”

App. 42; see Pls.’ Exhibit (“PX”) 1 at 38-41; Trial Tr.

(“Tr.”) 299:10-309:21.

Senate Bill 1249 started as an empty shell—it

contained no map or details for three months. App.

8-9. On December 14, 2011, Republicans amended

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of the new districts. Id. Republican Senators suspended the ordinary rules of procedure to rush the

bill through the Senate that same day. 17A909 Stay

Appl. App’x D (“App’x D”) ¶¶ 109, 126.1 Less than a

week later, on December 20, 2011, the House passed

SB 1249, and Governor Corbett signed the bill into

law two days later. App. 10.

The petition appendix includes only a short excerpt from the

Pennsylvania lower court’s opinion; Respondents accordingly

cite to the version attached to Petitioners’ second stay application.

2. The 2011 map “packed” Democratic voters into

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margins, and “cracked” the remaining Democratic

voters by spreading them across 13 districts that

would be reliably Republican. Petitioners’ counsel

admitted to the Pennsylvania Supreme Court that

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based upon the manner in which they voted in prior

elections.” Oral Arg. Video at 1:54:33-44. The result

was bizarre districts that ripped apart Pennsylvania’s communities to an unprecedented degree. App.

58-61.

By way of example, the 7th District’s tortured

shape earned the moniker “Goofy Kicking Donald

Duck.” App. 59; Tr. 598:25-599:22. This district alone

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tiple points was barely contiguous. App. 59-60; PX53

at 30-32.

The 6th District was nearly as absurd as the 7th.

It cobbled together pieces of multiple communities,

resembling Florida “with a more jagged and elongated panhandle.” App’x D ¶ 324. A surgical incision

carved out Reading, the county seat and a Democratic stronghold, from the rest of Berks County, instead

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lican 16th District via a narrow isthmus. App. 16, 29

n.17; App’x D ¶ 325; PX53 at 28-29, 50-52.

Erie County was undivided throughout modern

history until the 2011 map split it, cracking its Democratic voters between the Republican 3rd and 5th

Districts. App. 13, 15, 29 n.19, 59. The map carved

up the distinctive community of the Lehigh Valley for

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cratic voters. App’x D ¶¶ 326-28; PX53 at 47-49, 5455. The record contains many more examples.

3. In each of the three election cycles under the

2011 map, Republican candidates won 13 of Pennsylvania’s 18 congressional seats—the same 13 seats

each time. App. 33. In 2012, Republicans won those

same 13 of 18 seats (72%) despite winning only a minority of the total statewide vote (49%). Id.

B. The Pennsylvania State Court

Proceedings Below

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ers and others in the Pennsylvania Commonwealth

Court on June 15, 2017. Respondents challenged the

2011 map exclusively under the Pennsylvania Constitution, including its Free and Equal Elections

Clause, Pa. Const. art. I, § 5. That provision requires

that “[e]lections” be “free and equal.” Id. It has no

federal counterpart.

On November 9, 2017, the Pennsylvania Supreme Court exercised “extraordinary jurisdiction”

under 42 Pa. Cons. Stat. § 726, which authorizes the

court to “assume plenary jurisdiction” over any case

“involving an issue of immediate public importance”

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and justice to be done.” The state high court ordered

the Commonwealth Court to conduct a trial and isTVFmOEJOHTPGGBDUBOEDPODMVTJPOTPGMBX

2. At the weeklong trial in December 2017,

Plaintiffs’ experts demonstrated the 2011 map’s extreme partisan bias. Dr. John J. Kennedy, an expert

in Pennsylvania’s political geography, demonstrated—without rebuttal—that partisan intent was the

only explanation for the map’s packing and cracking

of Democratic voters, its bizarre districts, and its unprecedented division of communities. App. 58-61,

156-60.

Using a computer simulation methodology, Dr.

Jowei Chen concluded with over 99.9% statistical

certainty that the 2011 plan’s 13-5 Republican advantage would never have emerged from a districting

process that adhered to traditional principles. App.

47-58. Dr. Chen concluded that extreme partisan intent subordinated traditional districting principles in

the 2011 plan. App. 54. As a result, Republicans

won 4 to 5 more seats than they would have under a

plan that followed only traditional principles. App’x

D ¶ 267; Tr. 204:16-205:6.

Dr. Wesley Pegden, a mathematician at Carnegie

Mellon University, demonstrated to a mathematical

certainty that the 2011 map was intentionally drawn

to maximize partisan advantage. App. 61-62. Using

a computer algorithm that generated hundreds of billions of maps, he showed that the 2011 map was so

carefully engineered that its Republican bias rapidly

dissipated when tiny random changes were made to

the district boundaries. App. 61-62; App’x D ¶¶ 34243, 358-59.

Dr. Christopher Warshaw demonstrated that,

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gressional elections held under the 2011 map produced extreme levels of pro-Republican bias—the

worst in Pennsylvania’s history and among the worst

in American history. App. 62-66; PX35 at 5-15.

3. On December 29, 2017, the Commonwealth

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clusions of law. The court credited all of Respondents’ experts and found Petitioners’ experts not

credible. The court then found that the evidence “established intentional discrimination,” App. 82-83,

and that “a particular partisan goal—the creation of

13 Republican districts—predominated” in drawing

the 2011 map, App’x D ¶ 291. The court nevertheless

recommended upholding the map.

4. At oral argument in the Pennsylvania Supreme Court, Petitioners’ counsel stated that, if the

2011 map were struck down, Petitioners wanted “at

least three weeks” to pass a new map. App. 229 n.2.

Counsel also admitted that the Pennsylvania Supreme Court had previously applied the traditional

districting criteria of compactness, contiguity, and

avoiding splitting political subdivisions in assessing

congressional maps, and agreed that those criteria

were appropriate. Oral Arg. Video at 1:29:41-1:32:47.

5. On January 22, 2018, the Pennsylvania Supreme Court struck down the 2011 map on the “sole

basis” that it violated the Pennsylvania Constitution.

App. 208. In light of the “requests of the parties …

[a]t oral argument,” App. 229 n.2, the court gave the

General Assembly nearly three weeks (until February 9) to submit a remedial map to the Governor, and

another week for the Governor to consider such a

submission. If the other branches failed to agree on

a valid map, the court stated that it would “proceed

expeditiously to adopt a plan.” App. 209. The court

declared that there would be a remedial map in place

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the May 15 congressional primaries would need to be

postponed, at a cost of $20 million, unless a new map

were adopted by February 20, App’x D ¶ 448.

The Pennsylvania Supreme Court’s January 22

order set clear, well-established criteria for any remedial map. It had to “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.” App. 209.

On January 25, 2018, the state high court appointed Dr. Nathaniel Persily of Stanford University

to serve “as an advisor to assist the Court in adopting, if necessary, a remedial congressional redistricting plan.” App. 230.

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emergency application asking this Court to stay the

Pennsylvania Supreme Court’s judgment and remedial process on the ground that they violated the

Elections Clause. 17A795 Stay Appl. 9-10, 20, 22-23.

Justice Alito denied the stay application on February

7. In an opinion issued February 7, 2018, the

Pennsylvania Supreme Court held that the 2011 map

violated the Pennsylvania Constitution’s Free and

Equal Elections Clause. App. 3. The court explained

that Pennsylvania’s “founding document is the ancestor, not the offspring, of the federal Constitution,”

and that Pennsylvania’s Free and Equal Elections

Clause “provides a constitutional standard, and remedy,” for partisan gerrymandering, “even if the federal charter does not.” App. 3. The court undertook a

lengthy analysis of the Free and Equal Elections

Clause and its “evolution” in light of “[o]ur Commonwealth’s centuries-old and unique history.” App. 12333. The court concluded that the Clause’s “actual

and plain language … mandates that all voters have

an equal opportunity to translate their votes into

representation.” App. 123.

The state high court explained that traditional

redistricting criteria set forth in its January 22 order

were a “measure by which to assess whether th[is]

guarantee” has been violated. App. 149-50. Those

criteria are “deeply rooted in the organic law of [the]

Commonwealth.” App. 149. The court held that “a

congressional redistricting plan violates” the Free

and Equal Elections Clause when the “neutral criteria” of equal population, contiguity, compactness, and

avoiding splitting political subdivisions “have been

subordinated, in whole or in part, to extraneous considerations such as gerrymandering for unfair partisan political advantage,” and that the 2011 plan

failed that test. App. 152, 154. The court stressed

that, “while explicating our rationale, nothing in this

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ter, the mandate set forth in our Order of January 22,

2018.” App. 5-6.

The court observed that it had fashioned remedial districting maps on multiple prior occasions where

the legislature failed to correct a constitutional inmSNJUZBGUFSIBWJOHCFFOHJWFOBOPQQPSUVOJUZUPEP

so, and that both state and federal law recognize

state courts’ power to fashion remedial maps. App.

164-68.

Justice Baer concurred in part and dissented in

part. Chief Justice Saylor and Justice Mundy dissented.

8. On February 9, 2018, Petitioners (but not the

General Assembly, which was also a party in the

state court) submitted a proposed map to the Governor. The same day, they submitted the map to the

Pennsylvania Supreme Court. After considering the

map, the Governor rejected it because it was another

extreme gerrymander. Neither Petitioners’ proposed

map nor any other map was turned into legislation

or brought to a vote. And as the Pennsylvania Supreme Court noted, “[n]either the General Assembly

nor the Governor sought an extension of the dates

set forth in our January 22 Order.” App. 232.

9. On February 19, 2018, the Pennsylvania Supreme Court adopted a remedial map (the “Remedial

Plan”) developed with the assistance of Dr. Persily.

The court explained that “[t]he Remedial Plan is

based upon the record developed in the Commonwealth Court, and it draws heavily upon the submissions provided by the parties, intervenors, and

amici.” App. 233. The Remedial Plan strictly adheres to the criteria set forth in the court’s January

22 order. Id. Compared to the 2011 map, it splits

fewer counties (13 versus 27), splits fewer municipalities (19 versus 68), and is far more compact.2

The Pennsylvania Supreme Court published the

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net, and empirical analysis of the Remedial Plan

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party. If anything, it slightly favors Republicans.

Under the Remedial Plan, ten districts favored Donald Trump in the 2016 presidential election, while

eight favored Hillary Clinton. Objective metrics that

redistricting scholars commonly use to evaluate districting plans, such as the mean-median gap and the

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voring Republicans. See Br. of Amicus Campaign Legal Center, Corman v. Torres, No. 18-cv-443, ECF No.

81 (M.D. Pa. Mar. 2, 2018).

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stay application in this Court. No. 17A909. That application was referred to the whole Court and denied

without a noted dissent on March 19.

App. 233-34; Pa. Supreme Court, goo.gl/1FRrxy (click on “Remedial Plan Reports”).

11. On May 15, 2018, Pennsylvania held primary

elections for the 2018 election under the Remedial

Plan, which will govern the November 2018 general

elections. To this day, Petitioners have not introduced, much less passed, any new congressional map.

REASONS TO DENY THE PETITION

The Court should deny certiorari. This Court has

long held that state courts may impose state constitutional requirements on congressional redistricting

maps. Petitioners’ tortured efforts to distinguish

those decisions present no substantial or important

federal question. There are no splits of authority on

any of the questions presented, and there is no reason or precedent for this Court to insert itself into

decisions of state courts applying state constitutions.

Finally, this case is an exceedingly poor vehicle for

deciding any Elections Clause question.

The Petition Does Not Raise Any

Substantial Federal Question

A. State Statutes Establishing Congressional Districts Are Subject to State

Constitutional Provisions, as Construed

by State Courts

Petitioners contend that state statutes establishing congressional districts are not subject to a “state

constitution’s substantive law.” Pet. 19. In their

view, “a state constitution … may not control what

[congressional] lines will be,” and congressional districting statutes need not “comply with state constitutional individual-rights guarantees as interpreted

by the state courts.” Pet. 2, 21-22. Petitioners thus

contend that state constitutions may not require

congressional districts to be compact or to respect political subdivisions, may not prohibit racial discrimi-

nation in drawing congressional districts, and may

not impose any other “substantive” constraint on the

contours of congressional districts.

This radical proposition is antithetical to the

basic tenets of American democracy. State constituUJPOBM QSPWJTJPOT SFnFDU BOE FOBCMF DPOUSPM PG UIF

government by the people. In our system of government, the people of every state have the sovereign

right to establish their own constitution, and every

state legislature must comply with its state’s constitution in enacting state laws. A statute creating congressional districts is a state law just like any other.

While the Elections Clause authorizes state legislatures to draw congressional districts, nothing in the

Elections Clause abrogates the fundamental principle that a state legislature must comply with its

state’s constitution in performing its responsibilities.

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series of decisions that squarely foreclose Petitioners’

position. In Smiley v. Holm, 285 U.S. 355 (1932), the

Court held that the Elections Clause does not “endow

the Legislature of the state with power to enact laws

in any manner other than that in which the Constitution of the state has provided.” Id. at 368. There,

this Court made crystal clear that congressional districting legislation must comport with state constitutions, explaining that the Elections Clause does not

“render[] inapplicable the conditions which attach to

the making of state laws” in each state. Id. at 365.

In companion cases decided the same day as Smiley,

the Court reiterated that state courts have authority

to strike down congressional plans for violating “the

requirements of the Constitution of the state in relation to the enactment of laws.” Koenig v. Flynn, 285

U.S. 375, 379 (1932); accord Carroll v. Becker, 285

U.S. 380, 381-82 (1932).

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years ago, holding: “Nothing in [the Elections] Clause

instructs, nor has this Court ever held, that a state

legislature may prescribe regulations on the time,

place, and manner of holding federal elections in demBODFPGQSPWJTJPOTPGUIF4UBUFTDPOTUJUVUJPOwAriz.

State Legislature v. Ariz. Indep. Redistricting

Comm’n, 135 S. Ct. 2652, 2673 (2015). The Court afmSNFEUIBUDPOHSFTTJPOBMSFEJTUSJDUJOHNVTUCFiQFS

formed in accordance with the State’s prescriptions

for lawmaking.” Id. at 2668. And the Court rejected

the notion that the “Elections Clause renders the

State’s representative body the sole component of

state government authorized to prescribe regulations

for congressional redistricting.” Id. at 2673 (quotations and alterations omitted). Indeed, Arizona State

Legislature presented a greater intrusion on the authority of the state legislature than here. The independent commission there entirely supplanted the

state legislature in drawing congressional districts.

Here, the Pennsylvania Supreme Court merely held

that the General Assembly must comply with the

Pennsylvania Constitution in performing the task.

Even the dissent in Arizona acknowledged that the

legislature “may be required to [legislate] within the

ordinary lawmaking process.” Id. at 2687 (Roberts,

C.J., dissenting).

It is not only that this Court has repeatedly rejected the notion that the reference to “Legislature”

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state courts from reviewing congressional districting

laws under state constitutions. The second part of

the Elections Clause allows Congress “at any time” to

make its own regulations related to congressional

redistricting, U.S. Const. art. I, § 4, and Congress has

exercised this authority to codify the principle that

congressional districting plans must comport with all

aspects of state law. In 2 U.S.C. § 2a(c), Congress has

required that congressional districting laws be

adopted “in the manner provided by [state] law.” In

Arizona State Legislature, the Court explained that

congressional maps are valid under § 2a(c) where

they are “established . . . in whatever way [states]

may have provided by their constitution and by their

statutes.” 135 S. Ct. at 2669. Conversely, a map is

invalid under § 2a(c) where it does not comply with

TUBUF MBX IPXFWFS UIF TUBUF EFmOFT JU Id.; see also

Branch v. Smith, 538 U.S. 254, 273-76 (2003) (plurality op.).

In short, it is well-settled that state legislatures

may not pass congressional districting statutes that

violate the “provisions of the State’s constitution.”

Ariz. State Legislature, 135 S. Ct. at 2673. In Pennsylvania, one of the conditions that attaches to the

making of state laws is compliance with the Pennsylvania Constitution, as interpreted by the Pennsylvania Supreme Court. E.g., Emerick v. Harris, 1 Binn.

416, 1808 WL 1521 (Pa. 1808). Here, the Pennsylvania Supreme Court held that the 2011 map violates

the Pennsylvania Constitution’s Free and Equal

Elections Clause, and consequently the 2011 map

cannot stand.

Seeking to evade this extensive controlling authority, Petitioners attempt to draw a line between

state procedural requirements for the “lawmaking

process” and state substantive requirements imposing “time, place, or manner rules or policy limitations.” Pet. 21-22. According to Petitioners, only

procedural restrictions apply to congressional districting legislation: a state constitution purportedly

“may identify which state bodies have authority to

draw congressional districts, but it may not control

what those lines will be.” Pet. 21-22. But none of

this Court’s precedents remotely suggest such a distinction. To the contrary, this Court has made clear

that “[n]othing in [the Elections] Clause instructs,

nor has this Court ever held, that a state legislature

may prescribe regulations on the time, place, and

manner PG IPMEJOH GFEFSBM FMFDUJPOT JO EFmBODF PG

provisions of the State’s constitution.” Ariz. State

Legislature, 135 S. Ct. at 2673 (emphasis added).

Nor does Petitioners’ proposed distinction make any

sense. Allowing a governor to veto a state legislature’s districting plan, Smiley, 285 U.S. 355, or giving

redistricting authority to an entirely different body,

Ariz. State Legislature, 135 S. Ct. 2652, constrains

the “Legislature” in setting the “time, place, and

manner” of congressional elections at least as much

as substantive state constitutional requirements. It

would be anomalous to hold that, under the Elections

Clause, state constitutions may completely eliminate

the legislature from the redistricting process, but

may not guide state legislatures in redistricting or

permit judicial review. See Patchak v. Zinke, 138 S.

Ct. 897, 906 (2018) (plurality op.) (greater power includes the lesser power).

Petitioners’ view would seemingly require this

Court to overrule Wesberry v. Sanders, 376 U.S. 1

(1964). There, the Court rejected the plurality opinion in Colegrove v. Green, 328 U.S. 549 (1946)—which

had concluded that the Elections Clause’s reference

to “Congress” deprives federal courts of power to review congressional maps for compliance with constitutional provisions, including so-called “substantive”

ones. Petitioners say this is because all federal constitutional provisions have “equal dignity,” Pet. 23,

but Wesberry explained: “[N]othing in the language of

[the Elections Clause] gives support to a construction

that would immunize state congressional apportionment laws … from the power of courts to protect the

constitutional rights of individuals from legislative

destruction.” 376 U.S. at 6 (emphasis added).

Petitioners’ argument, if accepted, would have

extraordinarily far-reaching consequences that

would upset settled redistricting rules across the

country. At least eleven states besides Pennsylvania

have constitutional provisions that expressly impose

substantive requirements for congressional redistricting. See Ariz. Const. art. 4, pt. 2, § 1; Cal. Const.

art. 21, § 2; Fla. Const. art. III, § 20; Iowa Const. art.

III, § 37; Mo. Const. art. 3, § 45; N.Y. Const. art. 3, § 4;

Ohio Const. art. XIX, §§ 1-2; Va. Const. art. 2, § 6;

Wash. Const. art. 2, § 43; W. Va. Const. art. 1, § 4;

Wyo. Const. art. 3, § 49; see also League of Women

Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015).

All of these states have constitutional provisions requiring that congressional districts be compact and

contiguous. Id. Seven have constitutional provisions

prohibiting the unnecessary splitting of political

subdivisions in congressional districts. Id. And six

state constitutions prohibit favoring any political

party in congressional redistricting, or require that

congressional districts promote competition. Id.

All of these provisions impose substantive limitations on the state legislature’s enactment of statutes

establishing congressional districts, Pet. 19-20, and

hence all of the provisions would be invalid under

Petitioners’ reading of the Elections Clause. And

that count does not even include the many additional

states that have free and equal elections clause like

Pennsylvania’s or other substantive limitations on

elections legislation generally. App. 143 n.71. This

Court should decline Petitioners’ invitation to wreak

havoc on congressional districting across the country

based on a legal theory that is contrary to decades of

precedent.

B. This Court Cannot Second-Guess State

High Court Interpretations of State

Constitutions

Petitioners next argue that, even if state constitutions can substantively constrain state congressional maps, this Court can overrule a state high

court’s interpretation of its own state’s constitution if

the state court “strayed well beyond what the state’s

constitutional text can support.” Pet. 24-25. According to Petitioners, this Court can overrule the state

court if its interpretation is just too “atextual,” Pet.

24. This argument tramples just as much on foundaUJPOBMQSJODJQMFTPGGFEFSBMJTNBT1FUJUJPOFSTmSTUBS

gument.

It is hornbook law that this Court cannot review

decisions of state courts construing state law. This

Court is “bound to accept the interpretation of [state]

law by the highest court of the State.” Hortonville

Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n, 426

U.S. 482, 488 (1976). The Elections Clause provides

no exception to this rule, and no basis for this Court

to second-guess the legitimacy of state high courts’

interpretations of their own state constitutions. Neither this Court nor any federal court has ever suggested otherwise. The Pennsylvania Supreme Court

held that Pennsylvania’s Free and Equal Elections

Clause prohibits Pennsylvania’s General Assembly

from subordinating traditional districting criteria to

partisan motivations in creating congressional districts, and that holding is conclusive and unreviewable.

Petitioners’ proposed distinction between “explicit” and “atextual” state constitutional requirements

is also contrary to basic principles of judicial constitutional interpretation. Pet. 24, 26. Of course, Pennsylvania’s Free and Equal Elections Clause is

explicit; Petitioners’ real objection is that it is broad.

But courts, including this one, interpret broad constitutional provisions all the time. E.g., U.S. Const.

amends. I, XIV. Courts frequently impose mandatory

criteria or factors to consider in interpreting broad

constitutional guarantees. E.g., Reynolds v. Sims,

377 U.S. 533, 565-66 (1964) (identifying mandatory

one-person, one-vote rule from generic requirement

of equal protection); William Penn Sch. Dist. v. Pa.

Dep’t of Educ., 170 A.3d 414, 455 (Pa. 2017) (“Courts

give meaning routinely to all manner of amorphous

constitutional concepts …”). A high court’s interpretation of an open-ended constitutional provision is no

less authoritative than a constitutional provision

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Federal courts certainly have no authority to

draw Petitioners’ proposed distinction in reviewing

state high court interpretations of state law. Federal

courts do not get to decide whether a state constitutional provision is or is not “explicit” enough to sustain a state court’s interpretation.

Petitioners’

rhetoric about “obvious[] judicial policymaking,” Pet.

25, does not transmute a state constitutional interpretation into a federal question.

In any event, Petitioners’ intemperate portrayal

of the state high court’s decision does not accord with

reality. The Pennsylvania Constitution’s Free and

Equal Elections Clause explicitly guarantees freedom and equality in Pennsylvania elections. The decision below outlined the history of the clause at

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concern about the “dilution of the right of the people

of this Commonwealth to select representatives to

govern their affairs based on considerations of the

region of the state in which they lived, and the religious and political beliefs to which they adhered.”

App. 133. And the court explored the historical importance of traditional districting criteria in Pennsylvania, explaining that these requirements have

long been used “to prevent vote dilution” in Pennsylvania and “are deeply rooted in the organic law of

[the] Commonwealth.” App. 149. The decision below

was well-grounded in Pennsylvania history and prior

state court precedent.

As for Petitioners’ assertion that they were not

fairly “apprised” of these requirements back in 2011,

Pet. 28, that is false and contrary to admissions they

made below. More than 25 years ago in Mellow v.

Mitchell, 607 A.2d 204 (Pa. 1992), the Pennsylvania

Supreme Court adopted a remedial congressional

map using criteria including “avoid[ing] splitting of

political subdivisions and precincts,” “preserv[ing]

communities of interest,” and “compactness.” Id. at

208, 215-25. While Petitioners now assert that the

decision below created these criteria “from whole

cloth,” Pet. 3, Petitioners admitted to the state high

court that “[c]ompactness and avoiding splitting political subdivisions were things that [the PennsylvaOJB4VQSFNF$PVSU>JEFOUJmFEJOMellow.” Oral Arg.

Video at 1:29:49-1:30:21. Petitioners’ counsel subseRVFOUMZDPOmSNFEBUPSBMBSHVNFOUUIBUUIFTFDSJUF

ria were valid for evaluating the constitutionality of

congressional districts in Pennsylvania. Oral Arg.

Video at 1:32:18-1:33:05.

In sum, this Court should reject Petitioners’ invitation to supervise state high courts’ interpretation

of their own states’ constitutions.

C. The Elections Clause Does Not Strip

State Courts of Authority To Remedy

Violations of State Constitutions

In their second question presented, Petitioners

argue that the word “Legislature” in the Elections

Clause, U.S. Const. art. I, § 4, forbids state courts

from remedying violations of the state constitution.

Thus, according to Petitioners, the Pennsylvania Supreme Court lacked authority to adopt a remedial

congressional map after the court invalidated the

prior map and the legislature failed to adopt its own

remedy. Pet. 29-31. That argument has been rejected time and again by this Court and does not warrant review. This Court would have to overturn at

least six of its decisions spanning almost a century to

hold that the Elections Clause precludes state courts

from setting criteria for, or adopting, remedial congressional maps.

In the two companion cases decided the same day

as Smiley UIJT$PVSUFYQSFTTMZBGmSNFETUBUFDPVSUT

implementation of remedial congressional districting

plans after those courts invalidated prior plans under the state constitution. Carroll, 285 U.S. at 38182; Koenig, 285 U.S. at 379. In Koenig, the New York

Court of Appeals struck down the state’s congressional districting law because it violated “the requirements of the Constitution of the state in

relation to the enactment of laws,” and the state

court ordered the election to proceed under a remeEJBMQMBO64BU5IJT$PVSUBGmSNFEId.;

see also Carroll, 285 U.S. at 381-82 (same as to congressional districting plan imposed by Missouri Supreme Court).

More recently, in Growe v. Emison, 507 U.S. 25

(1993), this Court held that federal courts must defer

to state courts in congressional redistricting—and

upheld a state court’s power to draw a remedial plan

using traditional districting criteria. After invalidating Minnesota’s prior congressional districting plan,

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developing its own congressional plan. Cotlow v.

Growe, C8-91-985 (Minn. Special Redistricting Panel

Apr. 15, 1992). However, a federal court enjoined the

state court from adopting any new plan and adopted

its own remedial plan. Growe, 507 U.S. at 30-31. The

state court subsequently released a provisional remedial plan, subject to the federal injunction, that

used the criteria of “minimiz[ing] the number of municipal and county splits” and promoting “compactness.” Cotlow, C8-91-985, supra.

This Court reversed the federal court’s injunction. Writing for a unanimous Court, Justice Scalia

held that “[t]he District Court erred in not deferring

to the state court’s efforts to redraw Minnesota’s …

federal congressional districts.” Growe, 507 U.S. at

42. This Court stated over and over again that state

courts have the power to review and remedy congressional districting plans and that federal courts must

not interfere:

• “In the reapportionment context, the Court

has required federal judges to defer consideration of disputes involving redistricting where

the State, through its legislative or judicial

branch, has begun to address that highly political task itself.” 507 U.S. at 33.

• “The power of the judiciary of a State to require valid reapportionment or to formulate a

valid redistricting plan has not only been recognized by this Court but appropriate action

CZUIF4UBUFTJOTVDIDBTFTIBTCFFOTQFDJmDBM

ly encouraged.” Id. (quotations omitted).

• “[T]he District Court’s December injunction of

state-court proceedings … was clear error. It

seems to have been based upon the mistaken

view that federal judges need defer only to the

Minnesota Legislature and not at all to the

State’s courts. Thus, the January 20 deadline

the District Court established was described

as a deadline for the legislature, ignoring the

possibility and legitimacy of state judicial redistricting.…[T]he doctrine of Germano prefers

both state branches to federal courts as agents

of apportionment.” Id. at 34.

• “The Minnesota [court’s] issuance of its plan

(conditioned on the legislature’s failure to enact a constitutionally acceptable plan in January), far from being a federally enjoinable

‘interference,’ was precisely the sort of state

judicial supervision of redistricting we have

encouraged.” Id. at 34.

Following this Court’s decision, the state court’s

remedial plan—drawn using traditional criteria of

compactness and minimizing political subdivision

splits—governed the 1994 congressional elections.

The Pennsylvania Supreme Court proceeded here

precisely as Growe “encouraged”: it gave the legislature a chance to enact a new plan and “conditioned”

the adoption of a state court plan on the “legislature’s

failure to enact a constitutionally acceptable plan.”

Growe, 507 U.S. at 34. Petitioners offer no argument

for overcoming ordinary stare decisis principles to

overturn a unanimous and recent decision.

Petitioners’ attempts to distinguish Growe get

them nowhere. First they rely (at 31-32) on the “al-

ternative holding” in Smith v. Clark, 189 F. Supp. 2d

548, 549 (S.D. Miss 2002), that a state court-drawn

congressional map ran afoul of the Elections Clause.

But this Court subsequently “vacated” that alternative holding and made clear that it “is not to be regarded as supporting” this Court’s resolution of the

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in the future.” Branch, 538 U.S. at 265-66.

Petitioners argue that Growe may be limited to

the “unique” context of the “Special Redistricting

Panel” established by the Minnesota Supreme Court

pursuant to state statutes. Pet. 31. Nothing in

Growe suggests anything like that. Besides, the

state statutes employed in Growe to establish the

Special Redistricting Panel were generic state laws

authorizing the Minnesota Supreme Court to superintend and assign responsibilities to lower court

judges. The Pennsylvania Supreme Court acted pursuant to a similar generalized state statute authorizing the court to “assume plenary jurisdiction” over

important cases, including redistricting cases. 42 Pa.

Cons. Stat. § 726.

Petitioners next contend that Growe involved the

authority of state courts to remedy violations of “federal law,” Pet. 32-33, rather than state law. But in

Growe, the Minnesota state court had found that the

prior congressional map violated “both the State and

Federal Constitutions.” 507 U.S. at 29. In any event,

Petitioners offer no coherent explanation of why the

remedial authority of state courts should turn on

whether a court is remedying a violation of federal or

state law. It would be nonsensical to hold that state

courts have greater power to remedy violations of

federal law than state law.

Petitioners (at 30) cite Arizona State Legislature,

but that decision rejects the notion that the “Elections Clause renders the State’s representative body

the sole component of state government authorized

to prescribe regulations for congressional redistricting.” Id. at 2673 (quotations and alterations omitted).

What’s more, pursuant to the second part of the

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ized state courts to establish remedial congressional

districting maps. Contrary to Petitioners’ contention

(at 31-32), Branch squarely held that 2 U.S.C. § 2c

authorizes both state and federal courts to “remedy[]

a failure” by the state legislature “to redistrict constitutionally,” and “embraces action by state and federal

courts when the prescribed legislative action has not

been forthcoming.” 538 U.S. at 270, 272 (emphasis

added). “[Section] 2c is as readily enforced by courts

as it is by state legislatures, and is just as binding on

courts—federal or state—as it is on legislatures.” Id.

at 272.

In the plurality portion of Branch, the Court held

that another federal statute, 2 U.S.C. § 2a(c), also

recognizes state courts’ power to adopt congressional

redistricting plans pursuant to state law. Id. at 273.

Section 2a(c) prescribes procedures that apply

“[u]ntil a State is redistricted in the manner provided by [state] law.” The plurality held that the “[u]ntil

a State is redistricted” language in this provision

“can certainly refer to redistricting by courts as well

as by legislatures,” and that “when a court, state or

federal, redistricts pursuant to § 2c, it necessarily

does so ‘in the manner provided by state law.’” Id. at

274 (emphasis added; bracketing omitted). The dissent disagreed with the plurality not on the theory

that state courts lack authority to impose a redis-

tricting plan, but because the dissent thought that

only state courts (and not federal courts) may undertake an initial redistricting. Id. at 277. Every Justice agreed that, as compared to federal courts, it is

“preferable for the State’s legislature to complete its

constitutionally required redistricting … or for the

state courts to do so if they can.” Id. at 278.

The majority in Arizona State Legislature reafmSNFEUIJTJOUFSQSFUBUJPO*UIFMEUIBU VOEFSf 2a(c),

“Congress expressly directed that when a State has

been redistricted in the manner provided by state

law—whether by the legislature, court decree, or a

commission established by the people’s exercise of

the initiative—the resulting districts are the ones

that presumptively will be used to elect Representatives.” 135 S. Ct. at 2670 (emphasis added) (quotations, citation, and alterations omitted).

In short, with at least six decisions of this

Court—Smiley, Koenig, Carroll, Growe, Branch, and

Arizona State LegislatureEFmOJUJWFMZ SFTPMWJOH UIF

question of state courts’ remedial redistricting authority against Petitioners, there is no conceivable

need for this Court’s review.

II. There Is No Split of Authority

In light of the foregoing, it is unsurprising that

there is no split of authority on the question whether

state legislatures are bound by the state constitution

when they enact congressional districting legislation.

Every lower court to have considered the issue since

Smiley has concluded that the Elections Clause does

not bar the application of the state constitution. See,

e.g., Detzner, 172 So. 3d at 370 & n.2. And this case

JTOPUUIFmSTUUJNFBTUBUFDPVSUIBTBQQMJFEBCSPBE

state constitutional provision to invalidate a congressional map. E.g., Moran v. Bowley, 179 N.E. 526, 531-

32 (Ill. 1932) (applying Illinois Constitution’s Free

and Equal Elections Clause, before Wesberry, to require one-person one-vote; citing additional cases).

Petitioners cite a handful of cases from the 19th

century holding that the Elections Clause precluded

states from applying state constitutional provisions

to regulate federal congressional elections. Pet. 20.

But all of these cases pre-dated Smiley and this

Court’s other decisions interpreting that Clause.

None of the post-Smiley cases that Petitioners

identify remotely hold that a state legislature may

enact statutes creating congressional districts in violation of the state constitution. Wood v. State, 142 So.

747 (Miss. 1932), has nothing to do with the issue

presented here. In that case the court considered

whether to grant a writ of mandamus on the ground

that the districts violated a federal law, and declined

to do so. Id. at 748. And the concurrence that Petitioners cite expressly rejects the proposition for

which Petitioners cite it, explaining that the state

legislature “was in full possession of power and discretion vested in it by section 4, art. 1” because

“[t]here was no state constitutional restriction upon

the Legislature in creating districts.” Id. at 755

(Ethridge, J., concurring).

Commonwealth ex rel. Dummit v. O’Connell, 181

S.W.2d 691 (Ky. 1944), states that the “legislative

process must be completed in the manner prescribed

by the State Constitution in order to result in a valid

enactment,” id. at 694, and then holds that the statute at issue did not violate any state constitutional

provision, id. at 696. Parsons v. Ryan, 60 P.2d 910

(Kan. 1936), did not even involve a claim that the

state law violated the state constitution. And State

ex rel. Beeson v. Marsh, 34 N.W.2d 279, 282, 286-87

(Neb. 1948), concerned presidential elections governed by Article II, § 1 of the federal constitution, not

Article I, § 4. The same is true of PG Publishing Co.

v. Aichele, 902 F. Supp. 2d 724, 748 (W.D. Pa. 2012).

Nor are there “differing judicial approaches” (Pet.

26) to the question whether the federal Constitution

mandates different treatment of what Petitioners

term “explicit” (id.) constitutional language. Petitioners do not identify a single decision of any court

declining to apply a state constitutional provision on

the ground that the provision needed some interpretation; none of the decisions cited at page 26 of the

petition draw any such distinction. That is again unsurprising in light of this Court’s decisions applying

the Equal Protection Clause and other federal constitutional provisions to congressional districting maps,

notwithstanding that those provisions require some

interpretation. Indeed, Petitioners cite no decision

holding in any context that federal courts or the federal constitution could disable states from guaranteeing due process, or equal protection, or free speech, or

any of the myriad protections that are hallmarks of

state (and federal) constitutions.

Nor is this case a proper vehicle to address issues

raised by a dissent from denial of certiorari in Colorado General Assembly v. Salazar, 541 U.S. 1093

(2004). That dissent raised the very different question whether state courts can entirely prohibit state

legislatures from redistricting. The petitioners there

did “not disput[e] state courts’ remedial authority to

impose temporary redistricting plans ‘so long as the

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lawful manner. Id. at 1094. Here, the state high

court gave the legislature the opportunity to redistrict in a constitutional manner and stepped in only

after the legislature failed to do so—again, precisely

as Growe encouraged.

III. This Petition Presents a Poor Vehicle for

Resolving Any Elections Clause Question

A. Petitioners’ Elections Clause Arguments

Are Doubly Estopped

There is a dispositive vehicle problem that alone

should prevent this Court from granting certiorari:

Petitioners are judicially estopped from asserting

their Elections Clause arguments in this Court.

To determine whether a party is judicially estopped under federal law, courts consider whether (1)

the party’s position is “clearly inconsistent with its

earlier position”; (2) “the party has succeeded in persuading a court to accept that party’s earlier position”; and (3) “the party seeking to assert an

inconsistent position would derive an unfair advantage ... if not estopped.” New Hampshire v.

Maine, 532 U.S. 742, 750-51 (2001) (quotations omitted). All three factors are met here. Indeed, it is difmDVMU UP JNBHJOF B DMFBSFS DBTF XIFSF FTUPQQFM JT

warranted “to prevent improper use of judicial machinery.” Id. (quotations omitted).

1. Petitioners Previously Argued that

the Pennsylvania State Courts Had

Power To Review and Remedy the

2011 Map

a. Petitioners advanced the opposite of their current position in separate litigation. On October 16,

2017, in a parallel federal lawsuit challenging the

2011 map, Petitioners argued that Growe “required”

the federal court to stay or abstain because the

Pennsylvania state courts had authority, and indeed

primacy, to address challenges to Pennsylvania’s congressional plans. Mot. to Stay and/or Abstain at 25,

Agre v. Wolf, No. 17-cv-4392, ECF No. 45-2 (E.D. Pa.

Oct. 2, 2017). When the district court denied the motion, Petitioner sought emergency mandamus relief

in this Court. They explained that, under “principles

of federalism” and this Court’s precedents in Growe

and Scott v. Germano, 381 U.S. 407 (1965), “federal

judges are ‘required … to defer consideration of disputes involving redistricting where the State,

through its legislative or judicial branch, has begun

to address that highly political task itself.’” Emergency Mandamus Pet’n at 13-14, In re Michael C.

Turzai, No. 17-631 (2017) (summarizing Growe, 507

U.S. at 33) (emphasis by Petitioners). In a section titled “The District Court Usurped the Power of the

Pennsylvania State Courts,” Petitioners wrote:

[T]here can be no question that the

Pennsylvania state courts have already

begun the “highly political task” of

addressing the challenges to the 2011

Plan. Because federal courts are required

to defer adjudication of a redistricting

matter that a state legislative or judicial

branch is already considering, the District

Court usurped the power of the

Pennsylvania appellate courts[.]

Id. at 18-19.

While this Court denied mandamus, Petitioners

subsequently succeeded in persuading a lower federal court to enter a stay based on the exact same argument. On November 20, 2017, in a second federal

lawsuit challenging Pennsylvania’s 2011 map, Petitioners again argued that the federal court was “required” to defer to the Pennsylvania state courts,

because state courts are valid and preferable “agents

of apportionment.” Mot. to Stay and/or Abstain at

23-26, Diamond v. Torres, No. 5:17-cv-5054, ECF No.

26-4 (E.D. Pa.). The federal court granted an initial

stay on November 22, and subsequently extended the

stay through January 8, 2018 on the basis of this

state court action. Diamond, ECF Nos. 40, 48.

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stay motion, again asserting that the “legislative or

judicial branch” of a state has authority to review

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Diamond, ECF No. 69-2 at 16 (emphasis in original).

On January 22, 2018—after the Pennsylvania

Supreme Court struck down the 2011 map under the

state constitution and set forth the timeline for the

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reply brief in Diamond again asserting that the federal court had to defer to Pennsylvania’s “judicial

branches” under the “plain language of Growe.” Diamond, ECF No. 81 at 2, 5.

On January 23, the Diamond court stayed the

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Defendants’ motion to stay (Doc. No. 69), as well as

the per curiam order entered by the Supreme Court

of Pennsylvania on January 22, 2018 in League of

Women Voters of Penn. v. Commw. of Penn.” Diamond, ECF No. 84. The parties eventually stipulated

to a dismissal.

Under these circumstances, there can be no dispute that Petitioners have taken inconsistent positions. Petitioners remarkably now assert that it is

an “open question” whether Growe applies in cases

such as this, and that, at most, Growe allows state

courts to address “violations of federal law” in congressional redistricting, not state law. Pet. 32. But

Petitioners previously told this Court that Growe was

so clearly controlling that it warranted mandamus

relief. Petitioners continued to rely heavily on Growe

in obtaining a stay in Diamond. While Petitioners

now argue that the Elections Clause “commits power” to regulate congressional redistricting only to

state legislatures and Congress, and that “[s]tate

courts are delegated none of this authority,” Pet 15,

Petitioners previously told this Court and the Diamond court that state courts are “agents of apportionment.” Diamond, ECF No. 69-2 at 16; see No. 81

at 2. And whereas Petitioners now contend that only

federal, and not state, law may constrain congressional plans, Petitioners argued to the Diamond

court that “state courts, rather than federal courts,”

are preferable forums to address challenges to congressional plans. Diamond, ECF No. 69-2 at 16. Petitioners so argued even though they knew that the

ongoing state court case raised only state-law claims.

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ments in Diamond even after the Pennsylvania Supreme Court issued its January 22 order setting

forth the remedial timeline. Diamond, ECF No. 81.

Far from arguing that the state high court’s decision

and remedial process were invalid, Petitioners cited

them as a reason for the federal court to stay its

hand. See id.

b. Petitioners “succeeded” in making this argument to the federal Diamond court. New Hampshire,

532 U.S. at 750-51. The Diamond court granted a

full stay based on Petitioners’ argument that state

courts such as the Pennsylvania Supreme Court have

primacy in addressing congressional redistricting

challenges. Diamond, ECF No. 84. Petitioners acDSVFE TJHOJmDBOU CFOFmUT GSPN UIJT TUBZ JU BMMPXFE

them to avoid discovery and trial in federal court,

and led the Diamond plaintiffs to agree to dismiss

the case.

c. Judicial estoppel is necessary to prevent Petitioners from “deriv[ing] an unfair advantage” and

abusing the “judicial machinery.” New Hampshire,

532 U.S. at 750-51. If this Court were to ultimately

rule in Petitioners’ favor, Petitioners will have obtained relief in two different courts based on diametrically opposed positions: (1) a stay, and then

dismissal, in Diamond based on the argument that

state courts have primary authority to review and

remedy congressional districting challenges, including under state law; and (2) a victory in this Court

based on the argument that Pennsylvania Supreme

Court had no authority to resolve the challenge to

the 2011 map. This is reason alone to deny certiorari.

2. Petitioners Successfully Urged this

Court to Dismiss a Direct Appeal

Based on the State Court Decision

They Now Challenge as Invalid

Petitioners are judicially estopped for a second

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cessfully argued to this Court that the federal Agre

case was moot because of the state high court decision in this case.

In Agre v. Wolf, an unsuccessful lawsuit challenging the 2011 map under the U.S. Constitution, Petitioners argued to this Court that the plaintiffs’

appeal was “moot” because “the 2011 Plan . . . is no

MPOHFSJOFGGFDUw.PUUP"GmSNBU Agre v. Wolf, No.

17-1339 (Apr. 23, 2018). They wrote: “Because the

Pennsylvania Supreme Court invalidated the 2011

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teria that future plans must satisfy to comply with

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concrete, and the parties have no current adverse legal interests.” Id. at 9. Petitioners have now taken a

“clearly inconsistent” position, see New Hampshire,

532 U.S. at 750, telling this Court that the “2011

Plan is the plan that … should govern Pennsylvania’s congressional elections.” Pet. 2.

Petitioners “succeeded in persuading [this]

[C]ourt to accept [their] earlier position.” New Hampshire, 532 U.S. at 750. This Court stated: “The appeal is dismissed as moot.” Agre v. Wolf, 138 S. Ct.

2576, 2576 (2018).

For this reason too, judicial estoppel is necessary

to prevent Petitioners from “deriv[ing] an unfair advantage” and abusing the “judicial machinery.” New

Hampshire, 532 U.S. at 750-51. Petitioners might

have asked this Court to defer adjudication of the

Agre appeal until this Court had resolved this petition for certiorari and, if granted, the merits of this

case. See generally Growe, 507 U.S. at 32 (“We have

required deferral … when a constitutional issue in

the federal action will be mooted or presented in a

different posture following conclusion of the statecourt case.”); id. at 32 n.1 (similar). But Petitioners

did not request deferral or abstention in their Motion

UP "GmSN JO Agre; instead, they urged dismissal on

the ground that the Pennsylvania Supreme Court’s

EFDJTJPOXBTmOBMBOEUIBUUIFAgre plaintiffs’ claims

were thus moot.

It would be fundamentally unfair for this Court

to dismiss the appeal in Agre as “moot” on the basis

of the Pennsylvania Supreme Court’s decision, but

then overturn that very same decision.

B. There Are Other Significant Vehicle

Problems

Multiple other issues render this a poor vehicle

for resolving any Elections Clause question.

First, as stated above, Petitioners expressly conceded at oral argument before the Pennsylvania Supreme Court that the traditional districting criteria,

which the state court eventually adopted, were valid

criteria for assessing the validity of the 2011 map.

They have waived any argument to the contrary.

Second, with respect to the state high court’s

remedy, Petitioners repeatedly complain about the

short time the General Assembly was given to enact

a new congressional map. But the petition does not

actually present any argument regarding the constitutionality of the timing of the state high court’s remedial process. In any event, Petitioners have again

waived any such complaint. Petitioners asked the

Pennsylvania Supreme Court for “at least three

weeks” to pass a new plan if the court struck down

the 2011 map, Oral Arg. Video at 1:45:53-1:46:09, and

the Pennsylvania Supreme Court gave them the time

that they asked for.

Finally, this Court’s intervention is unwarranted

because the Pennsylvania Supreme Court’s remedial

plan is in place and indisputably will govern the

2018 elections. The only election that would be impacted by a decision by this Court would be the 2020

elections. But although many months have passed

since the decision below, Petitioners have never made

an effort to pass a compliant plan or to submit it to

the Pennsylvania Supreme Court and ask the court

to install that plan for the 2020 elections. Under

these circumstances they should not be heard to

complain that the court has supplanted the legislature.

C. This Court Should Not Intervene in Disputes Between Branches of State Government

This Court should independently deny the petition because federal courts should not be adjudicating disputes between branches of state government

“regarding their respective powers.” Ariz. State Legislature, 135 S. Ct. at 2695 (Scalia, J., dissenting).

This Court has long been reluctant to intervene in

disputes between other branches of the federal government, e.g., Raines v. Byrd, 521 U.S. 811, 819-20

(1997), and should be even more reluctant to referee

disputes between branches of a state government.

As Justices Scalia and Thomas explained in an Elections Clause challenge in Arizona State Legislature,

separation of powers principles and the limited role

of the federal judiciary dictate that it is simply not

the “business” of federal courts to resolve disputes

between branches of state government over their allocation of power. 135 S. Ct. at 2695.

CONCLUSION

The petition should be denied.

Respectfully submitted,