Amicus Curiae Brief — O. John Benisek, et al., Appellants v. Linda H. Lamone, Administrator, Maryland State Board of Elections, et al.

Supreme Court briefJan 29, 2018

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No. 17-333

In The

O. JOHN BENISEK, EDMUND CUEMAN, JEREMIAH

DEWOLF, CHARLES W. EYLER, JR., KAT O’CONNOR,

ALONNIE L. ROPP, and SHARON STRINE,

Appellants,

LINDA H. LAMONE, State Administrator of Elections,

and DAVID J. MCMANUS, JR., Chairman of the

Maryland State Board of Elections,

Appellees.

On Appeal from the United States District Court

for the District of Maryland

BRIEF OF INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION, NATIONAL LEAGUE

OF CITIES, U.S. CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND THE

COUNTY OF SANTA CLARA AS AMICI CURIAE

IN SUPPORT OF APPELLANTS

Charles W. Thompson, Jr.

Amanda Kellar Karras

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

51 Monroe St., Suite 404

Rockville, MD 20850

G. Michael Parsons, Jr.

Counsel of Record

Corey W. Roush

1333 New Hampshire Ave. NW

Washington, DC 20036-1564

(202) 887-4000

michael@parsons.net

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE................................. 1

INTRODUCTION

AND

SUMMARY

ARGUMENT .......................................................... 4

ARGUMENT ................................................................ 8

LOCAL GOVERNMENTS PLAY A VITAL

ROLE IN OUR CONSTITUTIONAL ORDER

AND

CREATING

DISTINCT

COMMUNITIES OF INTEREST ..................... 8

II.

PARTISAN

GERRYMANDERING

DISRUPTS THE REPRESENTATION OF

COMMUNITIES AND STIFLES LOCAL

DECISION-MAKING ..................................... 12

III. AMICI

SUPPORT

CLEAR

AND

COHERENT

APPROACH

REDISTRICTING LAW THAT COMBINES

INTUITIVE

STANDARDS

WITH

PRACTICAL EVIDENCE ................................. 19

A. The Ambiguous Treatment of Partisan

Gerrymandering Claims Complicates

Redistricting Law for Local Governments ..... 19

B. Constitutional Doctrine Already

Provides Fair and Intuitive Standards

Familiar to Local Government

Lawyers ...................................................... 23

C. Permitting a Variety of Realistic and

Practical Evidence Would Improve

Administrability ........................................ 30

CONCLUSION .......................................................... 37

TABLE OF AUTHORITIES

CASES:

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

135 S. Ct. 2652 (2015) .................................. 6, 8, 22

Avery v. Midland Cnty.,

390 U.S. 474 (1968) ................................................ 8

Baker v. Carr,

369 U.S. 186 (1962) .............................................. 22

Bartlett v. Strickland,

556 U.S. 1 (2009) .................................................. 36

Bd. of Educ. v. Pico,

457 U.S. 853 (1982) .............................................. 24

Benisek v. Lamone,

1:13-CV-3233, 2017 U.S. Dist. LEXIS

136208 (D. Md. Aug. 24, 2017) .....................passim

Bethune-Hill v. Va. State Bd. of Elections,

141 F. Supp. 3d 505 (E.D. Va. 2015) ................... 13

Bethune-Hill v. Va. State Bd. of Elections,

137 S. Ct. 788 (2017) ............................................ 36

Bond v. United States,

564 U.S. 211 (2011) ................................................ 8

Brown v. Thomson,

462 U.S. 835 (1983) .............................................. 27

iii

Bush v. Vera,

517 U.S. 952 (1996) ........................................ 13, 27

Calvin v. Jefferson Cnty. Bd. of Cmm’rs,

172 F. Supp. 3d 1292 (N.D. Fla. 2016) ................ 20

Chen v. City of Houston,

206 F.3d 502 (5th Cir. 2000) ................................ 20

Citizens United v. FEC,

558 U.S. 310 (2010) .............................................. 25

City of Rome v. United States,

446 U.S. 156 (1980) .............................................. 36

Clark v. Putnam County,

293 F.3d 1261 (11th Cir. 2002) ............................ 20

Clinton v. City of New York,

524 U.S. 417 (1998) ................................................ 6

Common Cause v. Rucho,

1:16-CV-1026, 2018 U.S. Dist. LEXIS

5191 (M.D.N.C. Jan. 9, 2018)........................passim

Cooper v. Harris,

137 S. Ct. 1455 (2017) .......................................... 30

Davis v. Bandemer,

478 U.S. 109 (1986) .............................................. 17

Easley v. Cromartie,

532 U.S. 234 (2001) .............................................. 36

Elrod v. Burns,

427 U.S. 347 (1976) .............................................. 26

Fortson v. Dorsey,

379 U.S. 433 (1965) ................................................ 4

Gaffney v. Cummings,

412 U.S. 735 (1973) .......................................... 6, 27

Gregory v. Ashcroft,

501 U.S. 452 (1991) ................................................ 8

Hunt v. Cromartie,

526 U.S. 541 (1999) ................................................ 6

Karcher v. Daggett,

462 U.S. 725 (1983) .................................. 11, 12, 27

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) .................................. 17, 33, 36

Lepak v. City of Irving,

453 F. App’x 522 (5th Cir. 2011) .......................... 20

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803).................................. 6

Matal v. Tam,

137 S. Ct. 1744 (2017) .......................................... 25

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ............................................ 8, 9

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) .............................................. 23

Public Integrity Alliance, Inc. v. City of

Tucson,

836 F.3d 1019 (9th Cir. 2016) ........................ 19, 20

Raleigh Wake Citizens Ass’n v. Wake Cnty.

Bd. of Elections,

827 F.3d 333 (4th Cir. 2016) ................................ 19

Reynolds v. Sims,

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

Roman v. Sincock,

377 U.S. 695 (1964) .............................................. 27

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990) ................................................ 35

Thornburg v. Gingles,

478 U.S. 30 (1986) ................................................ 34

Vieth v. Jubelirer,

541 U.S. 267 (2004) ..................................... 5, 26-28

Wesberry v. Sanders,

376 U.S. 1 (1964) .................................................... 4

Whitcomb v. Chavis,

403 U.S. 124 (1971) ............................................ 4, 5

White v. Regester,

412 U.S. 755 (1973) .............................................. 36

Whitford v. Gill,

218 F. Supp. 3d 837 (W.D. Wis. 2016) ................. 35

STATUTES:

28 U.S.C. § 2284(a) .................................................... 20

OTHER AUTHORITIES:

Abraham Bell & Gideon Parchomovsky, Of

Property and Federalism, 115 Yale L.J.

72 (2005) ............................................................... 11

Alexis de Tocqueville, Democracy in

America (H. Reeve trans. 1961) ........................... 10

Andrew Douglas, FairVote’s Monopoly

Politics 2016 Projections Updated,

FairVote (Sept. 22, 2015) ..................................... 33

Christopher Warshaw, An Evaluation of the

Partisan Bias in Pennsylvania’s

Congressional District Plan and its

Effects on Representation in Congress,

Expert Report in League of Women

Voters of Pa., et al., v. Commonwealth of

Pennsylvania, No. 261 MD 2017 (Pa.

Commw. Ct. Nov. 27, 2017) ...................... 14-16, 30

Confidence in Institutions, Gallup ............................ 29

Erwin Chemerinsky, The Values of

Federalism, 47 Fla. L. Rev. 499 (1995) .................. 9

FairVote, Monopoly Politics 2018 ............................. 33

vii

G. Michael Parsons, Clearing the Political

Thicket: Why Political Gerrymandering

for Partisan Advantage is

Unconstitutional, 24 Wm. & Mary Bill

Rts. J. 1107 (2016)................................................ 26

G. Michael Parsons, The Institutional Case

for Partisan Gerrymandering Claims,

2017 Cardozo L. Rev. de novo 155 ............ 21-25, 28

J.B. Wogan, States and Localities are Losing

Their Influence in Washington,

Governing (June 2014) ......................................... 18

James E. Campbell, The Seats in Trouble

Forecast of the 2010 Elections to the U.S.

House, 43 Pol. Sci. & Politics 627 (2010) ............. 32

Justin Levitt, Intent Is Enough: Invidious

Partisanship in Redistricting, 59 Wm. &

Mary L. Rev. (forthcoming 2018) ......................... 26

Michael S. Kang, Gerrymandering and the

Constitutional Norm Against

Government Partisanship, 116 Mich. L.

Rev. 351 (2017) ......................................... 24, 26, 35

Nathaniel Persily & Jon Cohen, Americans

Are Losing Faith in Democracy—And in

Each Other, The Washington Post (Oct.

14, 2016) ............................................................... 29

Nicholas Stephanopoulos, The Causes and

Consequences of Gerrymandering, 59 Wm.

& Mary L. Rev. (forthcoming 2018) ......... 15, 16, 18

viii

Paul A. Diller, Why Do Cities Innovate in

Public Heath? The Implications of Scale

and Structure, 91 Wash. U. L. Rev. 1219

(2014) ................................................................ 9, 10

Richard L. Hasen, Race or Party, Race as

Party, or Party All the Time: Three

Uneasy Approaches to Conjoined

Polarization In Redistricting and Voting

Cases, 59 Wm. & Mary L. Rev.

(forthcoming 2018) ......................................... 20, 22

Stephen Ansolabehere, James M. Snyder,

Jr., and Charles Stewart, III, Candidate

Positioning in U.S. House Elections, 45

Am. J. of Pol. Sci. 136 (2001) ............................... 14

In The

No. 17-333

O. JOHN BENISEK, EDMUND CUEMAN, JEREMIAH

DEWOLF, CHARLES W. EYLER, JR., KAT O’CONNOR,

ALONNIE L. ROPP, and SHARON STRINE,

Appellants,

LINDA H. LAMONE, State Administrator of Elections,

and DAVID J. MCMANUS, JR., Chairman of the

Maryland State Board of Elections,

Appellees.

On Appeal from the United States District Court

for the District of Maryland

BRIEF OF INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION, NATIONAL LEAGUE

OF CITIES, U.S. CONFERENCE OF MAYORS,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND THE

COUNTY OF SANTA CLARA AS AMICI CURIAE

IN SUPPORT OF APPELLANTS

INTEREST OF AMICI CURIAE1

The International Municipal Lawyers Association

(“IMLA”) has been an advocate and resource for local

Appellants and appellees have consented to the filing of

this brief through blanket consent. Pursuant to this Court's

Rule 37.6, counsel represent that no part of this brief was

authored by counsel for any party, and no person or entity other

than pro bono counsel made any monetary contribution to the

preparation or submission of the brief.

(1)

government attorneys since 1935. Owned solely by

its more than 2,500 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters. IMLA’s

mission is to advance the responsible development of

municipal law through education and advocacy, to

champion the development of fair and realistic legal

solutions, and to assist members on the vast and

cutting-edge legal issues facing local government

lawyers today. The IMLA provides the collective

viewpoint of local governments around the country on

legal issues before the Supreme Court of the United

States, the United States Courts of Appeals, and

state supreme and appellate courts.

The National League of Cities (“NLC”) is

dedicated to helping city leaders build better

communities. NLC is a resource and advocate for

19,000 cities, towns, and villages, representing more

than 218 million Americans.

The U.S. Conference of Mayors (“USCM”),

founded in 1932, is the official nonpartisan

organization of all United States cities with a

population of more than 30,000 people, which

includes over 1,400 cities at present. Each city is

represented in USCM by its chief elected official, the

mayor.

The International City/County Management

Association (“ICMA”) is a non-profit professional and

educational organization whose 11,000 members

serve as appointed chief executives and assistants for

cities, counties, towns, and regional entities. ICMA’s

mission is to create excellence in local governance by

advocating for and developing the professional

management of local governments throughout the

world.

The County of Santa Clara (“County”),

established in 1850, is a charter county and political

subdivision of the State of California. Its mission is

to protect the health, safety, and welfare of 1.9

million County residents. As a governmental entity

with a responsibility to protect the welfare of its

residents, the County has a strong interest in

promoting and protecting core democratic principles

at the local, state, and national levels. The County

also administers local, state, and federal elections.

INTRODUCTION AND SUMMARY OF

ARGUMENT

“No right is more precious in a free country than

that of having a voice in the election of those who

make the laws under which, as good citizens, we

must live. Other rights, even the most basic, are

illusory if the right to vote is undermined.” Wesberry

v. Sanders, 376 U.S. 1, 17 (1964). Because the right

to vote “can be denied by a debasement or dilution of

the weight of a citizen’s vote just as effectively as by

wholly prohibiting the free exercise of the franchise,”

this Court has held that “Our Constitution leaves no

room for classification of people in a way that

unnecessarily abridges this right.” Reynolds v. Sims,

377 U.S. 533, 555, 560 (1964) (quoting Wesberry, 376

U.S. at 17-18).

Indeed, almost immediately after establishing

the “one-person one-vote” doctrine, the Court

recognized that this vital principle might apply with

equal force to redistricting schemes that “designedly

. . . would operate to minimize . . . the voting strength

of racial or political elements of the voting

population.” Fortson v. Dorsey, 379 U.S. 433, 439

(1965). For “[t]he question of the gerrymander is the

other half of Reynolds v. Sims.” Whitcomb v. Chavis,

403 U.S. 124, 176 (1971) (Douglas, J., concurring in

part and dissenting in part). “[T]he astute drawing of

district lines [can] make[] [a] district either heavily

Democratic or heavily Republican . . . . Lines may be

drawn so as to make the voice of one racial group

weak or strong, as the case may be.” Id. at 176-77.

As Justice Douglas observed: “The problem of the

gerrymander is how to defeat or circumvent the

sentiments of the community. The problem of the

law is how to prevent it.” Id. at 177.

Amici represent local communities—cities,

counties, and towns—across the United States. Such

localities and municipalities play an essential part in

our civic society, our democratic system, our

constitutional order, and in the formation of distinct

communities of interest. These communities are as

diverse and unique as they are integral to the life,

liberty, and happiness of a pluralistic, self-governing

people.

Partisan gerrymandering “defeat[s] [and]

circumvent[s] the sentiments” of these communities,

id., carving up localities and cobbling together bits

and pieces of neighborhoods for no legitimate

government purpose.

Even when mapmakers

manage to keep some municipalities intact, however,

it is “the will of the cartographers rather than the

will of the people [that] govern[s].” Vieth v. Jubelirer,

541 U.S. 267, 331 (2004) (Stevens, J., dissenting).

Studies have confirmed the unfortunate truth that

voters recognized long ago: those who hold the

districting pen can foreordain the composition and

character of a state’s congressional delegation

without changing the mind of a single voter.

When the state targets certain segments of the

population and suppresses their electoral influence

because it disfavors their political beliefs and fears

the way they will vote, it denies those voters

meaningful representation and leads elected officials

to ignore the distinct interests of localities as

coherent communities. This is the polar opposite of

what this Court has recognized as “[t]he very essence

of districting”: “to produce a different—a more

‘politically fair’—result than would be reached with

elections as large.” Gaffney v. Cummings, 412 U.S.

735, 753 (1973). The fact that the redistricting

process is committed to political actors, permits the

use of political considerations for legitimate purposes,

and “inevitably has and is intended to have political

consequences” does not mean that “racial or political

groups [may be] fenced out of the political process [or

have] their voting strength invidiously minimized.”

Id. at 753-54.

Although this Court has acknowledged that

partisan gerrymanders “are incompatible with

democratic principles,” Ariz. State Legislature v. Ariz.

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658

(2015),

and

has

suggested

that

partisan

gerrymandering is not immune to judicial scrutiny,

see Hunt v. Cromartie, 526 U.S. 541, 551 n.7 (1999)

(“This Court has recognized . . . that political

gerrymandering claims are justiciable.”), it has

declined—for decades—to articulate “the standards

that would govern such a claim,” id. This status quo

cannot persist. See Marbury v. Madison, 5 U.S. (1

Cranch) 137, 163 (1803) (“The government of the

United States has been emphatically termed a

government of laws, and not of men. It will certainly

cease to deserve this high appellation, if the laws

furnish no remedy for the violation of a vested legal

right.”); Clinton v. City of New York, 524 U.S. 417,

452 (1998) (Kennedy, J., concurring) (“Abdication of

responsibility is not part of the constitutional

design.”).

In the absence of any judicial remedy, legislators

have grown bolder and more brazen in their abuses.

This legal “no man’s land” not only undermines the

rule of law in general, it also spills over into adjacent

areas of the law, complicating redistricting doctrine

for local government lawyers everywhere. Because

many local governments also utilize single-member

districts, this ambiguity makes it more difficult than

necessary to identify the clear “dos and don’ts” of the

redistricting process.

Happily, the Constitution already provides wellworn and intuitive standards that are familiar to

cities, counties, and citizens alike. Whether the

Court decides to ground partisan gerrymandering

claims in the First Amendment, the Equal Protection

Clause, or both, everyone readily understands that

the Constitution prohibits the government from

infringing the right to vote, from singling out citizens

for disfavor based on their views, or from enacting

laws that target particular groups of citizens for no

reason other than disapproving their political beliefs.

Voters understand these principles innately, and

attorneys navigate these legal doctrines fluently. By

harmonizing the legal standards and evidentiary

rules at issue in partisan gerrymandering cases with

those found in the rest of redistricting jurisprudence,

this Court can provide doctrinal consistency and

practical tools to local government lawyers

everywhere ahead of the next round of redistricting.

The result will be less legal confusion, more

compliant maps, and more responsive and

accountable representation for voters and local

communities across the country.

For these reasons, amici respectfully request that

this Court vacate the order below and remand the

case for further proceedings.

ARGUMENT

LOCAL GOVERNMENTS PLAY A VITAL

ROLE IN OUR CONSTITUTIONAL ORDER

AND

CREATING

DISTINCT

COMMUNITIES OF INTEREST

This Court has long recognized the critical

importance of political power being exercised at the

local level—that is, the level closest to those

governed. See, e.g., Avery v. Midland Cnty., 390 U.S.

474, 481 (1968). Indeed, this Court recently stated in

the federalism context that preserving a space for

more local governance “allows local policies ‘more

sensitive to the diverse needs of a heterogeneous

society,’ permits ‘innovation and experimentation,’

enables greater citizen ‘involvement in democratic

processes,’ and makes government ‘more responsive’

by putting the States in competition for a mobile

citizenry.’” Ariz. State Legis., 135 S. Ct. at 2673

(quoting Bond v. United States, 564 U.S. 211, 222

(2011) (quoting Gregory v. Ashcroft, 501 U.S. 452, 458

(1991))).

Each of these enduring and essential aspects of

governance aptly applies to our nation’s great cities,

small towns, rural counties, and the rest of the

panoply of local governments in our federal system.

This makes the views and vitality of local

governments especially significant and relevant to

the instant case.

To begin, local governments have a distinct

ability to reflect the particular needs and interests of

diverse communities across the country. As Justice

Brandeis famously argued, decentralization can

foster innovation in policymaking. See New State Ice

Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,

J., dissenting) (“It is one of the happy incidents of the

federal system that a single courageous state may, if

its citizens choose, serve as a laboratory; and try

novel social and economic experiments without risk

to the rest of the country.”).

Given the fifty states’ ability to serve as

“laboratories of democracy,” the thousands of cities

and counties throughout the nation are by sheer

quantity even better positioned to innovate with

respect to policy in all sorts of substantive areas.

Whether tackling public health challenges, advancing

economic development, developing novel strategies

for environmental protection, grappling with the

challenges of public safety, or addressing so many

other policy challenges, our cities, towns, and

counties have been true laboratories of democracy,

with innovations at the local level often later being

adopted by states and the national government when

they have succeeded (and cabined when they fail).

See generally Paul A. Diller, Why Do Cities Innovate

in Public Heath? The Implications of Scale and

Structure, 91 Wash. U. L. Rev. 1219 (2014)

(discussing dynamics of local innovation and policy

diffusion) [hereinafter, Diller, Why Innovate?].

Ensuring that all three levels of governance are

empowered in our federal system is vitally important.

See Erwin Chemerinsky, The Values of Federalism,

47 Fla. L. Rev. 499, 538 (1995) (“A key advantage of

having multiple levels of government is the

availability of alternative actors to solve important

problems. If the federal government fails to act, state

and local government action is still possible. If states

fail to deal with an issue, federal or local action is

possible.”).

In addition to their ability to serve as crucial

laboratories of government innovation, municipalities

also offer uniquely democratic benefits of

participation. From the original New England town

meetings of the founding generation—a tradition that

still endures—to communities across the country

today, opportunities for participation and interaction

with local officials abound at the local level in ways

that simply are not possible for ordinary citizens at

the state and federal levels.

See 1 Alexis de

Tocqueville, Democracy in America 174 (H. Reeve

trans. 1961) (“It is incontestably true that the love

and the habits of republican government in the

United States were engendered in the townships and

in the provincial assemblies.”). In part, this is

because there generally are far fewer constituents for

each elected official even in our largest global cities,

compared to that of state and national politics.

Diller, Why Innovate?, supra, at 1257-58. These

representation ratios allow local leaders to respond

more directly to the people who elect them.

Local governments enhance democracy in

another related sense, as Alexis de Tocqueville

highlighted when he noted that “[t]own-meetings are

to liberty what primary schools are to science; they

bring it within the people’s reach, they teach men

how to use and how to enjoy it.” De Tocqueville,

supra, at 76. Service on one of our nation’s countless

city councils, school boards, county commissions, and

myriad other local bodies provides an invaluable

training ground for public leaders. Eventual leaders

in our state and national governments often learn

their earliest lessons in the crucible of local

government.

In addition, a certain amount of healthy

competition among cities promotes efficiency and

accountability in governance. Cf. Abraham Bell &

Gideon Parchomovsky, Of Property and Federalism,

115 Yale L.J. 72, 97 (2005) (reviewing empirical

evidence that “migration patterns between city and

suburbs are significantly affected by tax levels and

investment in education”).

Decentralization has

some logic at the scale of the fifty states, but our

nation’s cities, towns, and counties have much

greater ability to craft policies to respond to the

preferences of mobile residents.

For these reasons and more, the boundaries of

political subdivisions, such as counties and cities, are

also a key consideration during the redistricting

process. “Subdivision boundaries tend to remain

stable over time. Residents of political units such as

townships, cities, and counties often develop a

community of interest, particularly when the

subdivision plays an important role in the provision

of governmental services.” Karcher v. Daggett, 462

U.S. 725, 758 (1983) (Stevens, J., concurring).

Respect for locality boundaries can improve civic

engagement, responsiveness, accountability, and

avoid confusion for voters, candidates, and election

administrators alike. See id. (“[D]istricts that do not

cross subdivision boundaries are administratively

convenient and less likely to confuse the voters."). As

Justice Powell once wrote:

Most voters know what city and county

they live in, but fewer are likely to know

what congressional district they live in

if the districts split counties and cities.

If a voter knows his congressional

district, he is more likely to know who

his representative is. This presumably

would lead to more informed voting. It

also is likely to lead to a representative

who knows the needs of his district and

is more responsive to them.

Id. at 787 n.3 (Powell, J., dissenting) (internal

quotations and citations omitted).

Because localities form a natural “community of

interest” with common values and concerns that run

deeper than party label, they often bring tailored,

apolitical solutions to local policy problems. And just

as this Court has rightly associated the

decentralization and devolution found in our federal

system with unique benefits, so too does

empowerment of and respect for localities enhance

and improve our democracy.

II. PARTISAN GERRYMANDERING DISRUPTS

THE REPRESENTATION OF COMMUNITIES

AND STIFLES LOCAL DECISION-MAKING

While local governments facilitate civic

engagement,

responsiveness,

accountability,

pluralism, local autonomy, and liberty, partisan

gerrymandering undermines these critical democratic

values.

1. Gerrymandering regularly tears coherent

communities of interest apart and strings dissimilar

communities together. When a congressional district

is “nothing more than an artificial unit divorced from,

and indeed often in conflict with, the various

communities established in the State,” id. at 787,

representatives are less attuned to the unique

interests of local communities and those communities

are less capable of coherently conveying local

sentiments “up the chain” to their federal

representatives, see, e.g., Bethune-Hill v. Va. State

Bd. of Elections, 141 F. Supp. 3d 505, 537-38 (E.D.

Va. 2015), affirmed in part and vacated in part, 137

S. Ct. 788 (2017) (noting that “the splitting of

municipal and county jurisdictions drew the ire of

citizens, who . . . pointed out the difficulties that

citizens have in knowing who to contact, who to hold

accountable, and who among several legislators

should coordinate or lead the representation of local

city and county interests”).

The Court has previously recognized that

gerrymanders that “exhibit utter disregard of city

limits, local election precincts, and voter tabulation

district lines” can “cause[] a severe disruption of

traditional forms of political activity.” Bush v. Vera,

517 U.S. 952, 974 (1996) (O’Connor, J.). In Vera, for

example, “[c]ampaigners seeking to visit constituents

‘had to carry a map to identify the district lines,

because so often the borders would move from block

to block’; voters ‘did not know the candidates running

for office’ because they did not know which district

they lived in.” Id.

Here, as in Vera, the gerrymander at issue

dismembers several communities of interest, splitting

“two of the three incorporated cities and one of the

four incorporated towns” as well as dramatically

increasing the number of splits in unincorporated

(but officially recognized) communities. J.A. 808 ¶¶

141, 142. And here, also as in Vera, the detrimental

political impact is the same, with one of the plaintiffs

testifying that voters in the former Sixth District

stopped voting after the redistricting because “they

were confused about the candidates [and] didn’t know

who they should be engaging.” J.A. 328.

2. Even when mapmakers manage to respect

municipal boundaries, partisan gerrymandering can

still inflict harm upon local policies, interests, and

decision-making. This is because the combination of

political polarization and partisan gerrymandering

restricts the space for pragmatic community

compromises and interferes with the representation

of localities—with their distinct sets of preferences—

as a whole.

Polarization “means that representatives in

Congress nearly always vote the party line.”

Christopher Warshaw, An Evaluation of the Partisan

Bias in Pennsylvania’s Congressional District Plan

and its Effects on Representation in Congress, Expert

Report in League of Women Voters of Pa., et al., v.

Commonwealth of Pennsylvania, No. 261 MD 2017,

15-16 (Pa. Commw. Ct. Nov. 27, 2017). As this has

become more common, studies have shown an

increasingly “muted responsiveness to localities”

among representatives.

Id. (citing Stephen

Ansolabehere, James M. Snyder, Jr., and Charles

Stewart, III, Candidate Positioning in U.S. House

Elections, 45 Am. J. of Pol. Sci. 136 (2001)). As a

result, “polarization exacerbates the effects of

gerrymandering on the political process.” Id. at 16

n.10.1

Although polarization compounds the harms of

gerrymandering, “[t]he consensus among Political Scientists

In other words, the offense of partisan

gerrymandering is about more than “bloodless

concepts like seat and vote shares;” it’s about

“distort[ion]

of legislative

representation—the

beating heart of a democracy.”

Nicholas

Stephanopoulos, The Causes and Consequences of

Gerrymandering, 59 Wm. & Mary L. Rev.

(forthcoming 2018) (manuscript at 2, available at

https://ssrn.com/abstract=2990638). For example, at

the state house level, “a one standard deviation proDemocratic (pro-Republican) shift in the efficiency

gap also pushed a state’s overall set of policies by 2.4

percentage points in a liberal (conservative) direction.

By comparison, this is about twice the impact of

switching the governor from one party to the other.”

Id. at 8 (emphasis added). At the congressional level,

a 10% pro-Republican shift in the efficiency gap is

associated with a shift in ideological alignment

“roughly equivalent to the difference between the

ideologies of Republican Senators John Cornyn and

Lindsey Graham.”2 Warshaw, supra, at 22-23.

In short, mapmakers who engage in partisan

gerrymandering possess the ability to swing the

ideology of a state’s congressional delegation

dramatically—all without changing the mind of a

using pre-2011 redistricting period data is that gerrymandering

did not cause th[e] [rise in] polarization [since 1970]. There is

not yet a consensus about the effect of redistricting on

polarization in recent years.” Warshaw, supra, at 16 n.10.

“Cornyn was rated as the second most conservative

senator by the nonpartisan National Journal in 2011-12 . . . . In

contrast, Graham often takes moderate positions.” Warshaw,

supra, at 23.

single voter. Stephanopoulos, supra, at 3. And

because representatives increasingly vote the party

line based on national issues rather than local

concerns, citizens who are invidiously targeted by

partisan gerrymanders “are artificially deprived of

the opportunity to . . . have their views represented

in Congress.” Warshaw, supra, at 15. This has a

profound impact on nuanced, local issues and

whether voters who belong to distinct communities of

interest have any voice as a member of that local

community of interest.

First-hand testimony from voters in numerous

gerrymandering cases bears out the above empirical

results. As one of the plaintiffs in this case testified,

“every time we were out [campaigning], we met

somebody who said, it’s not worth voting anymore,

every single time . . . they just feel disenfranchised

that they can’t, they don’t have somebody that

represents them anymore.” J.A. 306-307. Voters in

North Carolina have had a similar experience,

declining to come out to vote because “they felt their

vote didn’t count.” Common Cause v. Rucho, 1:16CV-1026, 2018 U.S. Dist. LEXIS 5191, at *220

(M.D.N.C. Jan. 9, 2018). Whether one is a Maryland

Republican or a North Carolina Democrat,

gerrymandering strips disfavored voters of the

opportunity to have their unique voice heard in the

halls of Congress.

The

diminished

responsiveness

representatives

the

entirety

their

constituencies—and to their various local concerns—

is not simply troubling as a matter of structural

principles, institutional stability, and enduring

constitutional values; it is also relevant as a matter

of redistricting jurisprudence. One repeated concern

of the Court has been accepting—without any

evidence—the notion that representatives will not be

responsive to the needs of their constituencies as

whole. See Davis v. Bandemer, 478 U.S. 109, 132

(1986) (plurality opinion) (“An individual . . . who

votes for a losing candidate is usually deemed to be

adequately represented by the winning candidate and

to have as much opportunity to influence that

candidate as other voters in the district. We cannot

presume . . . without actual proof to the contrary,

that the candidate elected will entirely ignore the

interests of those voters.”); League of United Latin

Am. Citizens v. Perry (“LULAC”), 548 U.S. 399, 46970 (2006) (Stevens, J., dissenting) (“[T]his Court has

concluded that our system of representative

democracy is premised on the assumption that

elected officials will seek to represent their

constituency as a whole, rather than any dominant

faction within that constituency.”).

As partisan gerrymandering cases continue to

show, the overwhelming statistical and testimonial

evidence proves that districts are concocted so as to

insulate representatives and ensure that they need

not give any weight to the subset of voters who have

been precisely and reliably stripped of any

meaningful electoral power. Thus, even when local

municipal boundaries are not breached, partisan

gerrymandering robs county and city constituencies

of the opportunity to have their unique and diverse

perspectives heard and dampens congressional

concern for local community interests.3

In short, partisan gerrymandering frustrates

the preservation of local government interests,

restricts the freedom of local governments to pursue

policies suited to their constituents, and impedes the

ability of voters who belong to distinct communities

of interest to have their views heard in Washington.

3 This disconnect also manifests in the policies enacted at

the state and federal level, with local prerogatives increasingly

steamrolled by legislators more focused on advancing a single

ideology than providing space for constituents with diverse

views to enact locally tailored solutions based on the needs of

the community. For instance, in Gill v. Whitford, several amici

provided examples of the growing number of local policies being

preempted by state legislatures in states with high efficiency

gaps and other indicia of partisan gerrymandering.

See

generally Brief Amici Curiae of International Municipal

Lawyers Association, et al., Gill v. Whitford, 16-1161 (filed Sept.

5, 2017).

Because gerrymandering “dramatically influences the

representational

distortion

House

delegations,”

Stephanopoulos, supra, at 19, and polarization continues to

grow, local concerns have increasingly fallen by the wayside on

Capitol Hill as well, see J.B. Wogan, States and Localities are

Losing Their Influence in Washington, Governing (June 2014),

available at http://www.governing.com/topics/politics/gov-stateslocalities-losing-influence.html (last accessed Jan. 28, 2018).

Because Congress and state legislatures alike wield the power

to override, curtail, or disregard the policies and positions of

municipalities across the country, these bodies must possess the

utmost democratic and constitutional legitimacy if their

intrusions on local autonomy and policymaking are to be

justified.

III. AMICI

SUPPORT

CLEAR

AND

COHERENT APPROACH TO REDISTRICTING

LAW

THAT

COMBINES

INTUITIVE

STANDARDS WITH PRACTICAL EVIDENCE

As organizations representing local governments

and local government lawyers, amici recognize the

need for—and advocate for—realistic legal solutions

to complex legal problems. Here, too, amici believe

that the present case—and other pending partisan

gerrymandering claims—offer an opportunity for this

Court to clarify the state of the law, apply wellestablished legal standards, and provide workable

evidentiary guidance to courts and lawyers across the

country ahead of the next major round of

redistricting in 2021.

The Ambiguous Treatment of Partisan

Gerrymandering Claims Complicates

Redistricting Law for Local Governments

Although many redistricting cases and analyses

focus on state legislative and congressional

representation, local governments (and local

government lawyers) must also navigate the various

strands of this Court’s redistricting case law. From

one-person one-vote cases to racial dilution and racial

sorting cases, localities often deal with cutting-edge

legal questions before claims are brought on a wider

basis.4 In fact, challenges raised to city and county

See, e.g., Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd.

of Elections, 827 F.3d 333 (4th Cir. 2016) (one-person one-vote

case regarding population deviations based on illegitimate

consideration of partisan advantage); Public Integrity Alliance,

Inc. v. City of Tucson, 836 F.3d 1019 (9th Cir. 2016) (equal

redistricting decisions are especially useful to the

development of redistricting case law because they

are some of the few challenges that are routed

through the U.S. Courts of Appeals and subject to

this Court’s discretionary jurisdiction. See 28 U.S.C.

§ 2284(a) (convening three-judge district courts

“when an action is filed challenging the

constitutionality

the

apportionment

congressional districts or the apportionment of any

statewide legislative body”) (emphasis added).5

And while redistricting law has a notorious

reputation for being complex, 6 a great deal of the

protection and Anderson-Burdick case regarding city’s hybrid

city council system utilizing ward-level primaries and at-large

general election); Lepak v. City of Irving, 453 F. App’x 522 (5th

Cir. 2011) (one-person one-vote case regarding use of citizenvoting-age population versus total population); Clark v. Putnam

County, 293 F.3d 1261 (11th Cir. 2002) (racial gerrymandering

case); Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000)

(racial gerrymandering case regarding whether districts’ shapes

and demographics provide adequate circumstantial evidence to

prevent summary judgment); Calvin v. Jefferson Cnty. Bd. of

Cmm’rs, 172 F. Supp. 3d 1292 (N.D. Fla. 2016) (one-person onevote case regarding use of prison populations in calculating

equal population).

See, e.g., Public Integrity Alliance, 836 F.3d 1019 (9th

Cir. 2016), cert. denied, 197 L. Ed. 2d 518 (2017); Lepak, 453 F.

App’x 522 (5th Cir. 2011), cert. denied, 569 U.S. 904 (2013);

Chen, 206 F.3d 502 (5th Cir. 2000), cert. denied, 532 U.S. 1046

(2001).

Richard L. Hasen, Race or Party, Race as Party, or Party

All the Time: Three Uneasy Approaches to Conjoined

Polarization In Redistricting and Voting Cases, 59 Wm. & Mary

L. Rev. (forthcoming 2018) (manuscript at 12, available at

https://ssrn.com/abstract=2912403) (“The most charitable thing

complexity is due to this Court’s ambiguous

treatment of prior partisan gerrymandering claims.

Because the lack of a claim leaves open conceptual

and doctrinal gaps in racial gerrymandering law and

the one-person one-vote doctrine, mapmakers and

litigants alike “engage in legal arbitrage,” distorting

the body of law that does exist by using it to fight

about conduct governed by a body of law that does

not exist. See G. Michael Parsons, The Institutional

Case for Partisan Gerrymandering Claims, 2017

Cardozo L. Rev. de novo 155, 168.

After the last census, for example,

legislators sorted voters by race under

the pretext of a constitutional purpose

(preventing racial vote dilution) to

achieve an arguably unconstitutional

purpose (partisan vote dilution). By

doing so, legislators could pursue

suppressive partisan goals and blame

the federal courts and federal executive

to boot. In response, some partisan

litigants brought racial sorting claims to

vindicate partisan dilution harms, using

the legal remedy that did exist as a

proxy for the legal remedy that did not.

Legislators then claimed in defense that

they were discriminating against voters

based on party for partisan purposes

(unconstitutional under law that does

not exist) rather than discriminating

to say about the current state of racial gerrymandering law is

that it is a big mess.”).

against voters based on race for

partisan purposes (unconstitutional

under law that does exist).

Id. Even if the Court were to deviate from its default

rule that redistricting laws are justiciable, Baker v.

Carr, 369 U.S. 186 (1962), by creating an

unparalleled non-justiciability exception for partisan

gerrymandering claims,7 this doctrinal vacuum would

remain wide open, leaving mapmakers and litigants

to “shadow-box” over the real issues at stake, see

Hasen, supra, at 34.

In short, the law’s internal inconsistency,

ambiguity, and incompleteness provides the greatest

headache to local government lawyers faced with the

task of advising clients on the “dos and don’ts” of

redistricting law, not the flexibility of any particular

“do” or the rigorousness of any specific “don’t.”

As this Court pointed out in Baker v. Carr: “The doctrine

. . . is one of ‘political questions,’ not one of ‘political cases.’ The

courts cannot reject as ‘no law suit’ a bona fide controversy as to

whether some action denominated ‘political’ exceeds

constitutional authority.” 369 U.S. at 217. Creating a new

justiciability exception for partisan gerrymandering claims on

the basis of unmanageability alone would be profoundly

troubling. Not only has this Court already acknowledged that

partisan gerrymandering is contrary to fundamental democratic

principles, see Ariz. State Legislature, 135 S. Ct. at 2658, no

“majority of the Supreme Court has []ever found that a claim

raised a nonjusticiable political question solely due to the

alleged absence of a judicially manageable standard for

adjudicating the claim,” Rucho, 2018 U.S. Dist. LEXIS 5191, at

*70 n.14. Where, as here, there are numerous ways of detecting

the presence of meaningful, intentional vote dilution, see infra

at 30-36, there is no basis to claim that the Court lacks all

means of identifying the presence of a constitutional violation.

Crafting a claim (even a demanding one) that

completes the redistricting-law picture would not add

complexity, but rather would ease it.

Indeed, in areas of the law where “structural

safeguards” and institutional boundaries are at issue,

this Court has remarked that “clear distinctions” are

preferable to “delphic alternative[s],” which “simply

prolong[] doubt and multip[y] confrontation.” See

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239-40

(1995). The Court’s equivocal treatment of partisan

gerrymandering over several decades has done

precisely this, “blurr[ing] the lines of lawful behavior

and draw[ing] legislators out beyond clear

constitutional boundaries.” Parsons, supra, at 159.

As such, redistricting law would benefit from advice

familiar to local government attorneys everywhere:

“Good fences make good neighbors.” Plaut, 514 U.S.

at 240.

Constitutional

Doctrine

Already

Provides Fair and Intuitive Standards

Familiar to Local Government Lawyers

As a three-judge district court in North Carolina

recently noted, partisan gerrymandering “violates a

number

well-established

constitutional

standards—that the government act impartially, not

infringe the right to vote, and not burden individuals

based on the exercise of their rights to political

speech and association.” Rucho, 2018 U.S. Dist.

LEXIS 5191, at *87. Whether the Court looks to the

Equal Protection Clause, the First Amendment, or

both, the Constitution provides well-worn, intuitive

standards that are familiar to local governments,

local government attorneys, and the public.

Applying

these

principles

partisan

gerrymandering is not an unnecessary extension of

this Court’s case law, but rather a long-overdue

correction that harmonizes the Court’s approach to

partisan gerrymandering claims with the rest of its

fundamental constitutional doctrines and its overall

approach to judicial neutrality. 8 As Circuit Judge

Niemeyer observed in his dissenting opinion below,

“even where the government is allowed, or even

required, to consider the viewpoint of expression that

it regulates, this does not give it permission to

intentionally advance one viewpoint over the other.”

Benisek v. Lamone, 1:13-CV-3233, 2017 U.S. Dist.

LEXIS 136208, *74 (D. Md. Aug. 24, 2017)

(Niemeyer, J., dissenting) (citing Bd. of Educ. v. Pico,

457 U.S. 853 (1982)).

See generally Michael S. Kang, Gerrymandering and the

Constitutional Norm Against Government Partisanship, 116

Mich. L. Rev. 351 (2017); Parsons, supra, at 167 (noting that

“the Court’s unusual treatment of partisan gerrymandering

strays from [its traditional, established] approach to [judicial]

neutrality”); Rucho, 2018 U.S. Dist. LEXIS 5191, at *210-11

(“How can the First Amendment prohibit the government from

disfavoring certain viewpoints, yet allow a legislature to enact a

districting plan that disfavors supporters of a particular set of

political beliefs? How can the First Amendment bar the

government from disfavoring a class of speakers, but allow a

districting plan to disfavor a class of voters? How can the First

Amendment protect government employees’ political speech

rights, but stand idle when the government infringes on voters’

political speech rights? And how can the First Amendment

ensure that candidates ascribing to all manner of political

beliefs have a reasonable opportunity to appear on the ballot,

and yet allow a state electoral system to favor one set of political

beliefs over others?”).

First Amendment doctrine makes clear that the

government cannot “single[] out a subset of messages

for disfavor based on the views expressed,” Matal v.

Tam, 137 S. Ct. 1744, 1766 (2017) (Kennedy, J.,

concurring in part and concurring in the judgment),

or enact laws that favor or disfavor a particular

group or class of speakers, see Citizens United v.

FEC, 558 U.S. 310, 340 (2010). The Court does not

uphold judicial independence and impartiality by

steering clear of such cases, even when they involve

political actors or political issues. Rather, the Court

protects the Constitution and preserves its own

public status by rigorously and consistently honoring

these constitutional mandates.

Relying on such established principles would

provide clear rules that are second-nature to local

government

attorneys,

understandable

mapmakers, and obvious to the average citizen: “the

government [cannot] discriminate between citizens

based on how the government predict[s] they w[ill]

vote [in order to] favor preordained candidates and

. . . suppress the influence of those who disagree with

the state-sanctioned choices.” 9 Parsons, supra, at

As Chief Justice Roberts noted at oral argument in Gill

v. Whitford, any decision provided by the Court must be

intuitive and sound in clear constitutional principles, lest the

“intelligent man on the street” doubt the explanation, thereby

risking damage to the “status and integrity” of the Court. See

Gill v. Whitford, 16-1161, Oral Arg. Tr. 37:11-38:4 (Oct. 3, 2017).

“Far from diminishing the Court’s credibility,” however, a

decision restricting partisan gerrymandering is more likely to be

received by the public like the Court’s celebrated one-person

one-vote doctrine—“a rule so obvious one wonders why it took so

long to arrive.” Parsons, supra, at 176.

176. In short, mapmakers cannot draw districts in

order to favor Republicans simply because the

mapmaker “think[s] electing Republicans is better

than electing Democrats,” Rucho, 2018 U.S. Dist.

LEXIS 5191, at *5, or “set out to draw . . . borders in

a way that [is] favorable to the Democratic Party”

simply because the mapmaker would like to see more

Democrats elected, Benisek, 2017 U.S. Dist. LEXIS

136208, at *52.

“[T]hat is not a choice the

Constitution allows . . . mapdrawers to make.”

Rucho, 2018 U.S. Dist. LEXIS 5191, at *6.10

Nor are any of the nuances of these traditional

constitutional concepts difficult to understand. Just

as political affiliation can be considered in hiring for

policy-level government jobs (where the government

has a legitimate interest), but not in hiring for nonpolicy-level government jobs (where it does not), see

Vieth, 541 U.S. at 294 (citing Elrod v. Burns, 427

U.S. 347 (1976)), so too can political affiliation be

used to advance legitimate redistricting goals (such

as consistently creating competitive districts 11 or

See also Justin Levitt, Intent Is Enough: Invidious

Partisanship in Redistricting, 59 Wm. & Mary L. Rev.

(forthcoming

2018)

(available

https://ssrn.com/abstract=3011062); Kang, Gerrymandering and

the Constitutional Norm Against Government Partisanship,

supra; G. Michael Parsons, Clearing the Political Thicket: Why

Political Gerrymandering for Partisan Advantage is

Unconstitutional, 24 Wm. & Mary Bill Rts. J. 1107 (2016).

11 Appellees in the instant case have argued that altering

Maryland’s Sixth District created a “newly competitive” district.

Mot. to Affirm, Benisek v. Lamone, 17-333, at 18 (filed Oct. 31,

2017). But this Court has frequently reminded redistricting

litigants that even legitimate redistricting policies cannot

“allocat[ing] seats proportionately,” Vera, 517 U.S. at

964-65 (O’Connor, J.) (citing Gaffney, 412 U.S. at 75154)) but not illegitimate redistricting goals (such as

partisan advantage, see Vieth, 541 U.S. at 307

(Kennedy, J., concurring) (noting that “[a]

determination that a gerrymander violates the law

must rest on . . . a conclusion that the [political]

classifications, though generally permissible, were

applied in an invidious manner or in a way unrelated

to any legitimate legislative objective”)).

Similarly, as in other areas of the law, even

consideration of political affiliation in illegitimate

situations will not give rise to liability when the

consideration is not causally related to the

government action, the government action would

have occurred regardless, or the impact is de

minimis.

See Benisek, 2017 U.S. Dist. LEXIS

136208, at *85 (Niemeyer, J., dissenting). These are

well-known standards that local governments and

survive when they are applied inconsistently or in a

discriminatory fashion. See Brown v. Thomson, 462 U.S. 835,

844 (1983) (noting that the population variations were “entirely

the result of the consistent and nondiscriminatory application of

a legitimate state policy”); Karcher v. Daggett, 462 U.S. 725, 740

(1983) (“Any number of consistently applied legislative policies

might justify some variance, including, for instance, making

districts compact, respecting municipal boundaries, preserving

the cores of prior districts, and avoiding contests between

incumbent Representatives.

As long as the criteria are

nondiscriminatory, these are all legitimate objectives that on a

proper showing could justify minor population deviations.”)

(internal citation omitted); Roman v. Sincock, 377 U.S. 695, 710

(1964) (permitting population deviations “only as may occur in

recognizing certain factors that are free from any taint of

arbitrariness or discrimination”).

local government lawyers throughout the country

encounter and incorporate into their policy- and

decision-making every day across a range of contexts.

While amici acknowledge that recognizing such a

claim might lead to a short-term uptick in the

number of partisan gerrymandering actions faced by

some localities, this occurs when any confusing and

unsettled body of law is clarified by the Court. When

one considers “the timeline of the law,” Vieth, 541

U.S. at 312 (Kennedy, J., concurring), the relevant

question is not how many maps are challenged at the

moment the rule of law is announced, but what

equilibrium arises once the rule of law is settled. See

Parsons, supra, at 176. This perspective is especially

critical here, where multiple decades of judicial

abstention have encouraged mapmakers to venture

well beyond normal constitutional boundaries, even

to the point of freely conceding that maps were

enacted to reap a partisan advantage. See Benisek,

2017 U.S. Dist. LEXIS 136208, at *52 (conceding that

mapmakers “set out to draw the borders in a way

that was favorable to the Democratic Party”); Rucho,

2018 U.S. Dist. LEXIS 5191, at *148 (enacting formal

criteria that the plan should aim to elect “10

Republicans and 3 Democrats” because committee cochair “did not believe it would be possible to draw a

map with 11 Republicans and 2 Democrats”) (internal

brackets omitted).

Considering every map in the United States—

congressional, state, and local—will be revisited

following the upcoming 2020 census with or without

this Court’s guidance, amici believe clarification by

the Court would substantially benefit those tasked

with drawing new maps following the census and

would obviate the need for litigation that localities

might otherwise face in future years based on the

current amorphous state of the law. With a coherent

political gerrymandering claim (or claims) in place,

mapmakers will better understand what practices

are and are not permissible and local government

lawyers will better understand how the various

strands of this Court’s redistricting jurisprudence

interact with one another so as to minimize or

eliminate the risk of a lawsuit—political, racial, or

otherwise.12

12 Amici also believe this new equilibrium is likely to

enhance the stability and status of our democratic institutions

across the board. In 1973, 42% of Americans had a “great deal”

or “quite a lot” of confidence in Congress, while only 14% had

“very little” or “none.” In 2017, only 12% expressed confidence in

Congress, whereas 47% had little to none. Confidence in

Institutions,

Gallup,

http://www.gallup.com/poll/1597/confidence-institutions.aspx

(last accessed Jan. 28, 2018). In a 2016 poll, 40% of Americans

responded “I have lost faith in U.S. democracy,” and 6% said “I

have never had faith in U.S. democracy.” Nathaniel Persily &

Jon Cohen, Americans Are Losing Faith in Democracy—And in

Each Other, The Washington Post (Oct. 14, 2016),

https://www.washingtonpost.com/opinions/americans-are-losingfaith-indemocracy—and-in-each-other/2016/10/14/b35234ea90c6-11e6-9c520b10449e33c4_story.html?utm_term=.9ea890ecac75

(last

accessed Jan. 28, 2018).

Other studies have demonstrated that voters are less likely

to trust representatives in Congress when they hail from a state

that has been gerrymandered to suppress their views. See

Warshaw, supra at 28. “This suggests that gerrymandering is

eroding Americans’ faith in our democracy.” Id.

Permitting a Variety of Realistic and

Practical Evidence Would Improve

Administrability

Given the variety of contexts in which a partisan

gerrymandering claim could arise, amici also urge

the Court to employ a consistent evidentiary

approach to such claims and permit both plaintiffs

and defendants to rely upon a wide variety of

realistic and practical evidence in bringing and

defending claims. This Court held last term in

Cooper v. Harris that a racial gerrymandering claim

rests upon fundamental constitutional standards,

and while certain types of evidence (such as an

alternative map) may be particularly persuasive or

useful in supporting such a claim, the Equal

Protection Clause does not demand any “special

evidentiary prerequisite.” 137 S. Ct. 1455, 1479-80

(2017). This should be the case in the partisan

gerrymandering context as well.

Expert evidence, for example, should be

permitted— where available and accessible—in order

to maintain or defend a claim. Expert evidence will

often be the best evidence available in the pursuit or

defense of a partisan gerrymandering claim.13 Such

13 See Rucho, 2018 U.S. Dist. LEXIS 5191, at *166-88

(relying on measures of asymmetry, including the efficiency gap,

mean-median difference, and partisan bias in finding

discriminatory effect); id. at 188-91 (relying on an “extreme

statistical outlier” analysis and noting that 94.5% of simulated

plans across twenty races would have elected two-to-four fewer

Republicans than the enacted plan, and 100% of simulated

plans would have elected at least one less Republican); Mem. in

Supp. of Def.’s Cross-Mot. for Summ. Judgment, Benisek v.

evidence has not flummoxed lawyers or judges in

racial dilution cases, racial sorting cases, or any other

number of cases in which such evidence is deployed.

See Rucho, 2018 U.S. Dist. LEXIS 5191, at *87-102

(citing examples of judicial reliance on statistical and

social science evidence as proof of a violation of a

constitutional standard).

That said, as Appellants advocate, such studies

should not be mandatory, either as a threshold

showing or as a defensive necessity. From a practical

perspective, many local governments might not wish

to spend resources on expert evidence if they believe

other evidence is available and sufficient to defeat a

partisan gerrymandering claim.

Moreover, certain analytical tools might not

produce reliable results when applied to local

governments. For example, “when a [political body]

has six or fewer representatives, the efficiency gap

varies substantially with the shift of a single seat,

thus making it a less useful metric.” Id. at *169 n.27.

This would “render[] it difficult, if not impossible, to

apply” in certain localities with only a handful of

districts. Id. at *174.

In the end, however, the constitutional standard

does not vary with the size of the city or county

council, just as “[the] constitutional standard does

not vary with the size of a state’s congressional

delegation.” Id. at *175. In smaller city or county

councils, just as “[i]n states entitled to a small

Lamone, 1:13-CV-3233, Dkt. No. 186-1, at 24, 37-38 (filed June

30, 2017) (D. Md.) (invoking efficiency-gap calculations as a

defense against a claim of partisan gerrymandering).

number of representatives [in Congress], a partisan

gerrymandering plaintiff simply will have to rely on

different types of evidence to prove that the

redistricting body violated th[e] constitutional

standard.” Id.

The case at bar is such a case, with Appellants

relying upon election results, the Democratic

Performance Index (DPI), and the Cook Partisan

Voting Index (PVI) to provide evidence “that their

electoral effectiveness was meaningfully burdened.”

Benisek, 2017 U.S. Dist. LEXIS 136208, at *85

(Niemeyer, J., dissenting).

As Judge Niemeyer

observed, such analyses are sophisticated and

dependable tools in their own right, regularly used by

election analysts and mapmakers themselves. See id.

at *79-80 (noting that the DPI metric was used by the

consultant that designed Maryland’s plan); id. at *6465 (noting that the PVI metric is a “well-respected”

measure, and observing that “[w]hen the Cook Report

has rated a district ‘Solid Republican’ on the eve of a

congressional election, the Republican candidate has

won the race 99.7% of the time; when a district has

been rated as ‘Likely Democratic,’ the Democratic

candidate has won 94% of the time”) (citing James E.

Campbell, The Seats in Trouble Forecast of the 2010

Elections to the U.S. House, 43 Pol. Sci. & Politics

627, 628 (2010)).

Independent, nonpartisan organizations have

relied on similar kinds of modeling to predict election

outcomes.

For example, FairVote predicted the

outcome in 361 of 435 congressional seats ahead of

the 2016 election with 100% accuracy using no

information other than 2010-2014 election results

and whether an incumbent was running in the race.14

These projections were made in November 2014—two

years before the election—and were only updated to

account for races in which representatives announced

they would not be seeking reelection in 2016.15 “In

these districts, the challengers [were] powerless to

affect the outcome, regardless of their funding, their

qualities as candidates, or their ability to motivate

supporters.” 16 Members of Congress elected from

such “safe” seats (with a 10-percent advantage, for

example) “need not worry much about the possibility

of shifting majorities, so they have little reason to be

responsive to political minorities in their district.”

LULAC, 548 U.S. at 470–71 (Stevens, J., dissenting

in part). See also Rucho, 2018 U.S. Dist. LEXIS

5191, at *164-65 (noting agreement by defendants’

own expert that a seat was “‘safe’—i.e., highly

unlikely to change parties in subsequent elections”).

In other words, pretending that partisan

gerrymanders are not readily identifiable or do not

substantially impact the ability of targeted voters to

meaningfully affect the political process would be a

judicial fiction.

FairVote, Monopoly Politics 2018, at 2, available at

https://fairvote.app.box.com/v/MonopolyPolitics2018

(last

accessed Jan. 28, 2018) [hereinafter, “FairVote, Monopoly

Politics 2018”].

15 Andrew Douglas, FairVote’s Monopoly Politics 2016

Projections

Updated,

FairVote

(Sept.

22,

2015)

http://www.fairvote.org/fairvote_s_monopoly_politics_2016_proje

ctions_updated (last accessed Jan. 28, 2018).

16 FairVote, Monopoly Politics 2018, supra, at 2.

Election results themselves can also offer

accessible, circumstantial evidence that an intended

harm was, in fact, achieved.

See id. at *162

(including election results among “categories of

evidence” used to prove that the challenged plan

diluted the votes of targeted voters); Benisek, 2017

U.S. Dist. LEXIS 136208, at *84 (Niemeyer, J.,

dissenting) (noting that a change in election results

“would certainly be relevant evidence”). Although

the weight of election results evidence will vary based

on the strength of the plaintiff’s showing of intent

and other evidence that might be available, that does

not mean such evidence should be disregarded as a

matter of law.

Nor is any particular election result—or any

particular DPI or PVI showing—dispositive. If a

representative resides in a district that is

particularly favorable based on natural geography or

other legitimate redistricting considerations, a

partisan gerrymandering claim should not succeed.

Similarly, the mere fact that one candidate wins and

one candidate loses any given race does not, standing

alone, prove or negate the existence of an invidious

suppressive effect. See id. (“[A] plaintiff who has

shown that the State acted with impermissible

retaliatory intent need not show that the linedrawing

altered the outcome of an election . . . .”). This is the

same evidentiary approach local government

attorneys encounter in the Court’s racial dilution

case law. See Thornburg v. Gingles, 478 U.S. 30, 57

(1986) (noting that the “loss of political power

through vote dilution is distinct from the mere

inability to win a particular election”).

In other words, it simultaneously can be true

that no voter possesses any right to live in any

particular district or win any particular election, and

that the same voter possesses the right not to have

the electoral odds intentionally stacked against him

or her in order to disfavor his or her political

opinions, expressions, and associations. See Rutan v.

Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990)

(noting that the Constitution protects citizens “from

even an act of retaliation as trivial as failing to hold a

birthday party for a public employee . . . when

intended to punish her for exercising her free speech

rights”); Kang, supra, at 383 (“Party members may

not have any constitutional entitlement to electoral

success, but they should have a constitutional

expectation against the government actively trying to

burden their representational interests based on

their partisan affiliation and beliefs.”).

Evidence need not prove impossibility (and,

therefore, the ability to divine the future) in order to

prove the existence of a meaningful burden. The

evidence need only show that the gerrymander was

intended to dilute the influence of the targeted voters

and that the gerrymander’s success is assured under

any likely electoral scenario.17 These elements can be

proven through a range of different realistic and

practical forms of evidence, and the Court should not

See Whitford v. Gill, 218 F. Supp. 3d 837, 898-910 (W.D.

Wis. 2016), appeal docketed, No. 16-1161 (U.S. Mar. 24, 2017);

Rucho, 2018 U.S. Dist. LEXIS 5191, at *87-88; Benisek, 2017

U.S. Dist. LEXIS 136208, at *84-87 (Niemeyer, J., dissenting).

foreclose them just as it does not foreclose such

evidence in other redistricting cases.18

See LULAC, 548 U.S. at 468 n.9 (Stevens, J., dissenting

in part) (noting that the Court could “conclude that a significant

departure from symmetry is one relevant factor in analyzing

whether, under the totality of the circumstances, a districting

plan is an unconstitutional partisan gerrymander”); White v.

Regester, 412 U.S. 755, 769 (1973) (affirming district court

judgment that, “[b]ased on the totality of circumstances, . . . [the

plan]

invidiously excluded [plaintiffs] from effective

participation in political life”); Rucho, 2018 U.S. Dist. LEXIS

5191, at *193 (holding that, “[w]hen viewed in totality,” the

expert evidence, election results, and other circumstantial

evidence “prove that [the challenged plan] has discriminated,

and will continue to discriminate, against [the targeted]

voters”).

The fact that the Court already allows defendants in racial

sorting cases to rely upon a range of evidence to prove that

politics, not race, predominated in the linedrawing process

demonstrates that courts are more than capable of receiving and

considering a host of different circumstantial and direct

evidence in deciding whether the “essential basis” used in

forming a district was racial or political. See Bethune-Hill v. Va.

State Bd. of Elections, 137 S. Ct. 788, 799 (2017). Whether such

political considerations are legitimate or illegitimate is a

separate question for courts to evaluate. Compare Easley v.

Cromartie, 532 U.S. 234, 239-47 (2001) (legitimate interest in a

6-6 “partisan balance”), with Rucho, 2018 U.S. Dist. LEXIS

5191, at *147-49 (illegitimate interest in pursuing a 10-3

“partisan advantage”). This question parallels that already ably

managed in the racial gerrymandering context, where courts

distinguish between legitimate and illegitimate racial

considerations in redistricting. Compare City of Rome v. United

States, 446 U.S. 156, 177 (1980), abrogated in part by Shelby

Cnty., Ala. v. Holder, 133 S. Ct. 2612 (2013) (legitimate interest

in preventing racial dilution and securing equal opportunity to

elect), with Bartlett v. Strickland, 556 U.S. 1, 20 (2009)

(illegitimate interest in racial maximization). See also Gill v.

By adopting this realistic, practical, and

consistent evidentiary approach and relying on wellestablished, familiar, and coherent constitutional

standards, the Court can provide local governments

and their lawyers a clear lay of the land heading into

the next round of redistricting, forestall a range of

racial and political gerrymandering claims that

might otherwise arise, and help preserve the faith

and voice of voters residing in distinct, local

communities across the country.

CONCLUSION

For the foregoing reasons, amici respectfully

request that this Court vacate the order below and

remand the case for further proceedings.

Respectfully submitted,