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

No. 17-333

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------O. JOHN BENISEK, et al.,

Appellants,

v.

LINDA H. LAMONE, et al.,

Appellees.

-----------------------------------------------------------------On Appeal From The United States

District Court For The District Of Maryland

-----------------------------------------------------------------BRIEF OF THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, INC., THE

GEORGIA STATE CONFERENCE OF THE NAACP,

LAVELLE LEMON, MARLON REID, CELESTE SIMS,

PATRICIA SMITH, AND COLEY TYSON AS AMICI

CURIAE IN SUPPORT OF NEITHER PARTY

-----------------------------------------------------------------KRISTEN CLARKE

BRADFORD M. BERRY

JANETTE M. LOUARD

JON GREENBAUM

EZRA D. ROSENBERG

KHYLA D. CRAINE

Counsel of Record

THE NATIONAL

ASSOCIATION FOR THE

JULIE HOUK

JOHN POWERS

ADVANCEMENT OF

LAWYERS’ COMMITTEE FOR

COLORED PEOPLE, INC.

CIVIL RIGHTS UNDER LAW

OFFICE OF

1401 New York Ave., NW, Suite 400

GENERAL COUNSEL

4805 Mount Hope Drive

Washington, DC 20005

Baltimore, MD 21215

(202) 662-8600

erosenberg@lawyerscommittee.org (410) 580-5777

bberry@naacpnet.org

WILLIAM V. CUSTER

Counsel for Amici Curiae

JENNIFER B. DEMPSEY

the National Association

BRYAN CAVE LLP

for the Advancement of

1201 W. Peachtree St.

Colored People, Inc.

Atlanta, GA 30312

(404) 572-6600

bill.custer@bryancave.com

Counsel for Amici Curiae the

Georgia State Conference of the

NAACP, Lavelle Lemon, Marlon

Reid, Celeste Sims, Patricia

Smith, and Coley Tyson

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE .................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

2

ARGUMENT ........................................................

8

I.

II.

Partisan Gerrymandering Claims Are

Justiciable ..................................................

8

Invidious Intent to Minimize the Voting

Power of a Political Element Is a JudiciallyManageable Standard ................................ 14

A. Invidiousness Is an Accepted, JudiciallyManageable Standard ........................... 15

B. The Court Should Adopt Such Subsidiary Legal Standards As Are Relevant to

the Particular Type of Gerrymander..... 18

1. The Definition of the Type of Intent

Applicable to Pinpoint Gerrymander Claims May Be Different from

That Applicable to Statewide Gerrymander Claims ............................ 18

2. There Are Accepted and Judicially

Manageable Standards as to the

Level of Intent Applicable to Pinpoint Gerrymandering Cases ......... 23

C. The Georgia Case Demonstrates the

Sort of Evidence Relevant to Pinpoint

Gerrymander Claims ........................... 25

1. Statements by Officials Involved in

the Line-Drawing Decision ............. 26

ii

TABLE OF CONTENTS – Continued

Page

2. The Use of Race to Achieve a Partisan End in Line-Drawing ............... 28

3. Modifying a Plan Mid-Decade ........ 32

4. Deviation from Traditional Districting Principles ........................... 33

5. Injurious Effect ............................... 34

D. The Court Should Allow the Contours of

Subsidiary Legal Standards and Evidence Relevant to Gerrymander Cases

to Evolve............................................... 36

CONCLUSION..................................................... 38

iii

TABLE OF AUTHORITIES

Page

CASES

Ala. Legislative Black Caucus v. Alabama, 135

S. Ct. 1257 (2015) ....................................................20

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ................... 9, 19

Baker v. Carr, 369 U.S. 186 (1962) ............. 8, 14, 15, 37

Bethune-Hill v. Va. State Bd. of Elections, 137

S. Ct. 788 (2017) ................................................ 19, 33

Bray v. Alexandria Women’s Health Clinic, 506

U.S. 263 (1993) ........................................................17

Burns v. Richardson, 384 U.S. 73 (1966) .............. 20, 21

Cano v. Davis, 211 F. Supp. 2d 1208 (C.D. Cal.

2002) ........................................................................31

Common Cause, et al. v. Rucho, United States

District Court for the Middle District of North

Carolina, No. 1:16-CV-01164-WO-JEP ........... passim

Cooper v. Harris, 137 S. Ct. 1455 (2017) ................. 19, 28

Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579 (1993) ................................................................38

Davis v. Bandemer, 478 U.S. 109 (1986) ............ passim

Fortson v. Dorsey, 379 U.S. 433 (1965) .......................21

Gaffney v. Cummings, 412 U.S. 735 (1973) .......... 16, 21

Georgia State Conference of the NAACP, et al. v.

State of Georgia, et al., ___ F. Supp. 3d ___,

2017 WL 3698494 (Aug. 25, 2017) .................. passim

iv

TABLE OF AUTHORITIES – Continued

Page

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

2016) ................................................................ passim

Griffin v. Breckenridge, 403 U.S. 88 (1971) .......... 16, 17

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ............................... 26, 28, 30, 33

Luther v. Borden, 48 U.S. 1 (1849) ..............................14

Marbury v. Madison, 5 U.S. 137 (1803) ......................13

Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla.

2002) ........................................................................31

Meyer v. Nebraska, 262 U.S. 390 (1923) .....................32

Miller v. Johnson, 515 U.S. 900 (1995) ................. 25, 30

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) .................................................24

N.C. State Conf. of NAACP v. McCrory, 831 F.3d

204 (4th Cir. 2016) ...................................................30

Packingham v. North Carolina, 137 S. Ct. 1730

(2017) .......................................................................31

Patino v. City of Pasadena, 230 F. Supp. 3d 667

(S.D. Tex. Jan. 6, 2017) ............................................31

Perez v. Abbott, 2017 WL 962947 (W.D. Tex. Mar.

10, 2017) ............................................................ 29, 31

Perez v. Abbott, 2017 WL 1450121 (W.D. Tex. Apr.

20, 2017) ..................................................................28

Perez v. Abbott, No. 5:11-cv-00360-OLG-JES-XR,

2017 WL 3495922 (W.D. Tex. Aug. 15, 2017) ..........28

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...... 31

v

TABLE OF AUTHORITIES – Continued

Page

Reynolds v. Sims, 377 U.S. 533 (1964)............ 15, 16, 37

Rodriguez v. Harris Cty., Tex., 964 F. Supp. 2d

686 (S.D. Tex. 2013) .................................................31

Rogers v. Lodge, 458 U.S. 613 (1982) ..........................16

Shapiro v. McManus, 203 F. Supp. 3d 579 (D.

Md. 2016) .................................................................22

Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016)............30

Vieth v. Jubelirer, 541 U.S. 267 (2004) ............... passim

Village of Arlington Heights v. Metropolitan

Housing Development Corporation, 429 U.S.

252 (1977) ........................................................ passim

Williams v. Rhodes, 393 U.S. 23 (1968) ......................15

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................... 10, 21, 22, 24, 31

U.S. Const. amend. XIV ...................................... passim

Elections Clause, U.S. Const. art. I, § 2 ................ 10, 22

Guaranty Clause, U.S. Const. art. IV, § 4 ...................14

OTHER AUTHORITIES

Daniel D. Polsby & Robert D. Popper, The Third

Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9

Yale L. & Pol’y Rev. 301 (1991) .................................9

vi

TABLE OF AUTHORITIES – Continued

Page

Levitt, Justin, Intent is Enough: Invidious Partisanship in Redistricting (July 14, 2017),

William & Mary Law Review, Vol. 59 (Forthcoming) ....................................................................10

Loyola Law School, Los Angeles Legal Studies

Research Paper No. 2017-24 ...................................10

McDonald, Laughlin, The Looming 2010 Census:

A Proposed Judicially-Manageable Standard

and Other Reform Options for Partisan Gerrymandering, 46 Harv. J. on Legis. 243 (2009) ..........10

1

INTEREST OF THE AMICI CURIAE1

The National Association for the Advancement

of Colored People (NAACP), founded in 1909, is the

nation’s oldest and largest grassroots civil rights organization. Its principal objectives are to ensure the

political, educational, social and economic equality and

eliminate race prejudice and discrimination among the

citizens of the United States; to remove all barriers of

racial discrimination through democratic processes; to

seek enactment and enforcement of laws securing civil

rights; and to educate the public as to their constitutional rights and the effects of racial discrimination.

The NAACP and its chartered units have a long history of advocating to protect minority voting rights

and to ensure effective legislative representation for

African-Americans and other racial minorities, working in state and federal courts; state legislatures and

Congress; municipal, county and state election authorities, as well as state and federal agencies.

The Georgia State Conference of the National Association for the Advancement of Colored People (GA

NAACP), a chartered unit of the NAACP, was formed

in 1941 to eliminate racial discrimination through

democratic processes and ensure the equal political,

educational, social, and economic rights of all persons,

1

No counsel for a party has authored this brief in whole or

in part, and no counsel or any party made a monetary contribution intended to fund the preparation or submission of this brief.

No person other than amici or their counsel made a monetary contribution to its preparation or submission. The parties have consented to the filing of amicus briefs.

2

in particular African-Americans. GA NAACP, Lavelle

Lemon, Marlon Reid, Celeste Sims, Patricia Smith, and

Coley Tyson (Georgia redistricting plaintiffs) have

brought a lawsuit in the United States District Court

for the Northern District of Georgia, see generally Georgia State Conference of the NAACP, et al. v. State of

Georgia, et al., ___ F. Supp. 3d ___, 2017 WL 3698494

(Aug. 25, 2017), alleging that the 2015 mid-census cycle redrawing of Georgia State House Districts 105 and

111 is an unconstitutional partisan gerrymander. On

August 25, 2017, a three-judge panel dismissed that

count for failure to provide a judicially-manageable

standard with respect to the alleged discriminatory effect. Id. at *12-13. The Georgia redistricting plaintiffs

have an interest in the instant appeal because it raises

foundational issues related to the justiciability and

standard of review for partisan gerrymandering cases,

directly impacting the adjudication of their constitutional rights.

------------------------------------------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

This appeal presents a helpful counterpart to the

appeal in Gill v. Whitford, 218 F. Supp. 3d 837 (W.D.

Wis. 2016), argued earlier in this term, to illustrate

both the justiciability of partisan gerrymander cases

and the manageable judicial standards applicable to

these cases. The Court now has before it challenges to

both a statewide redistricting and a pinpoint redistricting, challenges brought by both the Democratic

Party and the Republican Party, and challenges that

3

both call for the overarching standard of invidiousness,

while at the same time demonstrating the need for

flexible legal and evidentiary standards to permit the

evolution of effective adjudication of these important

claims.

Justiciability of these claims should no longer

be in question. For over three decades, a majority of

the Court has ruled that partisan gerrymander cases

are justiciable, a conclusion consistent with the cognate apportionment cases. There appears to be no precedent for this Court to remove a category of cases from

justiciability to non-justiciability. To do so would be

particularly anomalous in the face of the universal

acknowledgement, among jurists and legal commentators, that partisan gerrymandering is incompatible

with our democracy because it denies voters a reasonable opportunity to elect representatives of their

choice, and allows representatives to disregard these

voters. Three three-judge panels in three different judicial circuits in the past year have now confirmed the

justiciability of these cases.

As these cases demonstrate, partisan gerrymanders, and their attendant evils, may come in many

guises. It is therefore important for this Court not only

to hold that partisan gerrymander cases are justiciable

with respect to a statewide apportionment as in Whitford, but also to recognize that the evils wrought by

this conduct may be accomplished subtly, with surgical

precision targeted at one or more districts to accomplish a similarly anti-democratic end, as alleged in this

appeal, and as happened in Georgia in 2015. That year,

4

the Republican-controlled Georgia Legislature carefully manipulated the lines of two swing districts in

the State House of Representatives, Districts 105 and

111. See Georgia State Conf. of the NAACP, 2017 WL

3698494, at *2 (three-judge panel). Elections in both

districts were very close in 2012 and 2014, and their

racial demographics were shifting to the disadvantage

of the white Republican incumbents. See id. at *2-3. The

2015 changes, in aggregate, moved African-American

voters out of and white voters into both districts. There

was a net gain of 2,191 non-Hispanic white residents

in District 105, according to 2010 Census data, while

there was a net loss of 1,137 non-Hispanic AfricanAmerican and 1,073 Hispanic residents in District

105. In District 111, there was a net gain of 1,335

non-Hispanic white residents, and a net loss of 1,251

non-Hispanic African-American and 277 Hispanic residents.2 Id.

This dilutive redistricting accomplished its goal.

In 2016, the white Republican incumbents in both districts narrowly defeated their black Democratic challengers – in one case by 222 votes. Nevertheless, a

federal court dismissed a partisan gerrymandering

claim against Georgia, on the basis that the plaintiffs

failed to plead a “metric” by which to measure discriminatory effect such as disproportionality, asymmetry, or

2

Amici are not asking the Court to adjudicate the Georgia

redistricting case, because it is not before the Court. Rather, they

are positing the facts alleged in that case, as if true, for the purpose of providing the Court with a real-life example of a pinpoint

gerrymander.

5

efficiency gaps. See Georgia State Conf. of the NAACP,

2017 WL 3698494, at *12-13. However, these metrics

are relevant only to a statewide analysis and are not

applicable to a district-specific challenge. A pinpoint

redistricting, however, can violate constitutional principles as much as a statewide partisan gerrymander.

Any standards adopted by this Court must be sufficiently flexible to apply to both. Accepting the justiciability of partisan gerrymandering cases but adopting

rules that permit subtler but equally pernicious forms

of gerrymandering would allow democracy to die by a

thousand cuts.

The sole basis for doubt as to the justiciability of

partisan gerrymandering cases is the purported lack of

“judicially-manageable standards” to guide resolution

of these cases, a concept derived from the “political

question” cases. There is, however, an accepted, overarching, judicially-manageable standard applicable to

these cases – invidiousness. This standard has been a

staple of Equal Protection apportionment cases.

Further, in Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S.

252 (1977), this Court has set out clear guidelines used

to determine invidiousness, which have been applied

by courts for decades. The Arlington Heights factors of

the impact of the official action, the specific sequence

of events leading up to the challenged decision, procedural and substantive departures from typical methods and manners of decision-making, and legislative

and administrative history, including contemporary

statements by members of the decision-making body,

6

are easily applicable to determining the intent behind

district line-drawing in both statewide and pinpoint

gerrymandering cases.

The invidiousness standard allows for the promulgation of subsidiary legal standards, which are equally

judicially manageable. However, because partisan gerrymandering cases come in different forms, the same

set of subsidiary standards that are applicable to

statewide gerrymander claims may not be applicable

to pinpoint gerrymander claims. For example, some

courts in statewide gerrymandering cases have defined invidiousness in the context of the intent to “entrench” a political party, a concept – depending on how

it is defined – that may be inapplicable to pinpoint gerrymanders. A broader standard, one that focuses on

the intent to minimize or reduce the voting strength of

a group of voters, may be more easily applicable to both

statewide and pinpoint gerrymanders. Or, perhaps, the

“entrenchment” standard should apply to statewide

gerrymanders and the “minimization” standard to pinpoint gerrymanders. But in any case, the standards are

judicially manageable.

Further, with invidiousness as the overarching

standard, the Court must decide whether the invidious

intent must be proved to be the predominating motivation for the line-drawing applicable in racial gerrymandering cases or “a” motivating factor – the standard

applicable in discrimination cases – or somewhere

in between. Again, whether the differences between

statewide gerrymander cases and pinpoint gerrymander cases call for a different level of motivation, the

7

standards are judicially manageable, and the issue

should not affect justiciability.

There is also no need for the Court to announce, in

this case or in Whitford, the precise contours of evidence supporting the Arlington Heights guidelines

that will be applicable in all future cases. Indeed, it

would be a mistake to do so, because one set of evidentiary standards cannot fit all gerrymanders. In the

Georgia case, for example, there is substantial evidence of invidiousness, in statements of those involved

in the decision-making, the use of race to achieve partisan ends, modification of a plan mid-decade, and the

failure to comply with traditional districting principles. However, while quantitative measures such as

disproportionality, asymmetry, or an efficiency gap

may be relevant evidence of impact in a statewide redistricting (and thus relevant to proving both intent

and effect), they are not necessarily relevant in a pinpoint gerrymander of one or a handful of districts, such

as that at issue in Georgia. Evidence illustrating impact in pinpoint gerrymandering cases may be offered

in different forms, ranging from the results of actual

elections to recreation of hypothetical elections to statistical models yet to be developed. Trial courts need

only exercise their traditional role as gatekeepers

in determining the admissibility of such evidence,

as relevant to the facts of the particular case. With

this Court’s guidance, the lower courts may devise the

subsidiary evidentiary standards on a case-by-case

8

basis, as they evolve over time, precisely the way other

constitutional jurisprudence has developed.

There is need, however, for the Court to clarify

that the use of race as a tool to effect a partisan gerrymander is an indicium of invidiousness to dispel the

notion that jurisdictions can use partisanship as a defense to pernicious racial gerrymanders.

------------------------------------------------------------------

ARGUMENT

I.

Partisan Gerrymandering Claims Are Justiciable

For over three decades, a majority of the Court

has ruled that partisan gerrymander cases are justiciable. Davis v. Bandemer, 478 U.S. 109, 118-27 (1986);

Vieth v. Jubelirer, 541 U.S. 267, 307-68 (2004) (Kennedy, J., concurring; Stevens, J., Souter, J., Ginsburg, J.,

Breyer, J., dissenting). The justiciability of these cases

is consistent with the Court’s ruling in Baker v. Carr,

369 U.S. 186 (1962), that cases brought under the Fourteenth Amendment challenging the constitutionality

of redistricting decisions did not present non-justiciable

“political questions.”

The plurality in Vieth, who opined that partisan

gerrymander claims were not justiciable because of the

lack of “judicially-manageable standards,” provided

not a single example where this Court had moved a

category of cases previously ruled justiciable into

the non-justiciable category. Amici are unaware of a

9

comparable decision. Barring the judicial review of

partisan gerrymandering claims would be particularly

anomalous because this Court has itself stated that

partisan gerrymanders are incompatible with democratic principles. Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (alterations in original) (quoting Vieth v. Jubelirer, 541

U.S. 267, 292 (2004) (plurality opinion)).

This is because such conduct goes “to the adequacy

of representation.” Bandemer, 478 U.S. at 125. From

the voter’s perspective, partisan gerrymandering has

been characterized as denying a particular group “its

chance to effectively influence the political process,” id.

at 132-33, and an effective opportunity to elect representatives of their choice in violation of the Equal Protection Clause. Id. at 167-68 (Powell, J., concurring and

dissenting). Justice Souter has described it as a “fairness” issue, deviating from the constitutional standard

that each political group is supposed to have the same

chance to elect their representatives. Vieth, 541 U.S. at

343 (Souter, J., dissenting).

To others, the problem is “conceding to legislatures

a power of self-selection,” which is in tension with a

Constitution “whose most arresting innovation was

the dispersion of power.” Daniel D. Polsby & Robert D.

Popper, The Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9

Yale L. & Pol’y Rev. 301, 304 (1991). Justice Stevens

believes that the practice violates the decision-maker’s

duty to remain impartial. Vieth, 541 U.S. at 326 (Stevens, J., dissenting). Justice Kennedy has suggested

10

that partisan gerrymandering may raise First Amendment issues because political classifications are used

“to burden a group’s representational rights.” Id. at

315 (Kennedy, J., concurring in the judgment). As

Judge Wynn recently summarized in a three-judge

panel’s rejection of North Carolina’s congressional redistricting: “Partisan gerrymandering runs contrary to

both the structure of the republican form of government embodied in the Constitution and fundamental

individual rights preserved by the Bill of Rights.” Common Cause, et al. v. Rucho, United States District Court

for the Middle District of North Carolina, No. 1:16-CV01164-WO-JEP, Doc. 116 at 46.

Regardless of whether the constitutional source of

the right is the First Amendment, the Fourteenth

Amendment, or the Elections Clause, authorities agree

that the consequences of partisan gerrymandering are

profound. Lawmakers may choose their voters for the

purpose of ensuring a near-certain result, which allows

elected officials to disregard the citizenry’s needs and

concerns. Laughlin McDonald, The Looming 2010 Census: A Proposed Judicially-Manageable Standard and

Other Reform Options for Partisan Gerrymandering,

46 Harv. J. on Legis. 243, 244 (2009). This in turn leads

to the voters being denied an “effective voice in policy

making,” and the ability to protect their rights. Id.

Even worse, as one commentator has said, “districts intentionally designed to subordinate voters based on

party preference are more likely to actually suppress

representation of that political viewpoint, whether

that suppression is measurable or not.” Levitt, Justin, Intent is Enough: Invidious Partisanship in Redistricting

11

(July 14, 2017), William & Mary Law Review, Vol. 59

(Forthcoming); Loyola Law School, Los Angeles Legal

Studies Research Paper No. 2017-24, abstract available at SSRN: https://ssrn.com/abstract=3011062.

Partisan gerrymanders come in various guises,

although they perpetuate the same evils. While Whitford centers on statewide redistricting, this appeal and

the Georgia redistricting case focus on a limited number of districts. Of the 7,556 residents surgically moved

from Georgia State House District 105 into a neighboring safe Republican district, 2010 Census data indicates that 63.8 percent are African-American or

Hispanic; they were replaced by 7,380 residents, of

whom only 35.6 percent are African-American or Hispanic. See Georgia State Conf. of the NAACP, 2017 WL

3698494, at *2. With respect to District 111, more than

30,000 residents were shuttled in and out of four

adjoining districts (each of which has a population

of less than 55,000), increasing the white population

percentage by 2.3 percentage points, and decreasing

the non-Hispanic African-American percentage by the

same amount. Id. at *3. These changes, while relatively

small in comparison to a statewide apportionment,

had a decisive effect in countering the demographic

shifts in the populations of Districts 105 and 111. Id.

at *2-3.

The reason is obvious: the State House elections in

both districts in 2012 and 2014 were close and featured

racially polarized voting patterns, both districts were

experiencing an increase in the registered voter percentage due to demographic changes, and minority

12

voters are perceived as reliably supporting Democratic

State House candidates. Id. The Republican-dominated

Georgia Legislature did not want to risk the incumbents in either district losing to a Democratic challenger. The Legislature accomplished its goal by

splitting precincts and moving census blocks, for which

there are racial data but no electoral information. See

id. at *12. Moreover, reflecting the hurried and secret

nature of this legislation, the adoption of the 2015

mid-census redistricting of Georgia House of Representatives District 105 and 111 (H.B. 566) did not

follow the normal legislative procedures. AfricanAmerican legislators serving on the House Legislative

and Congressional Reapportionment and the Senate

Reapportionment and Redistricting Committees were

excluded from the process of drawing and negotiating

the plans ultimately codified in H.B. 566. Id. at *2.

The November 2016 races for House District 105

and 111 were each close and proved just how effective

these changes could be in district elections. In 2016,

the white Republican incumbents in both districts

again ran against African-American candidates who

were Democrats. Id. at *2-3. Despite the adjustments

made by the legislature to tilt the outcome and the

presence of racially polarized voting patterns, the margins remained uncomfortably close. See id. In the election for House District 105, the margin of victory was

so close that the race went to recount. The incumbent

ultimately defeated her challenger by only 222 votes.

Id. at *2. In House District 111, the incumbent’s margin of victory in that election was only 946 votes, an

13

even tighter result than in past races. Id. at *3. But for

H.B. 566, and the mid-decade redistricting, AfricanAmerican Democrats would likely have won both races

in these districts. Id. at *2-3; Deposition of Dan O’Connor taken in Georgia State Conference of the NAACP, et

al. v. State of Georgia, et al., ___ F. Supp. 3d ___, 2017

WL 3698494 (Aug. 25, 2017) (“O’Connor Depo.”) at pp.

76-77; 90 available at https://lawyerscommittee.org/wpcontent/uploads/2018/01/121317OConnorFull.pdf.

The minority voters in these districts have therefore been deprived of their chance to have an effective

voice and to influence their representatives because of

their race and presumed political affiliation. It cannot

be the law that it is constitutional for one political

party to make a series of incremental changes designed for one purpose and one purpose only: to stack

the deck by moving opposing party members out of one

district and into another whenever an election becomes close. That is the antithesis of a true democracy.

Unless pinpoint partisan gerrymandering cases are

justiciable, the Court is consigning democracy to die by

a thousand cuts. Clearly, partisan gerrymandering is

an area where the Court must exercise its paramount

authority “to say what the law is.” Marbury v. Madison,

5 U.S. 137, 177 (1803).

14

II.

Invidious Intent to Minimize the Voting

Power of a Political Element Is a JudiciallyManageable Standard

The sole basis for doubt as to the justiciability of

partisan gerrymandering cases is the purported lack of

“judicially-manageable standards” to guide resolution

of these cases. See, e.g., Vieth, 541 U.S. at 277-90 (plurality opinion). However, the overarching standard of

an invidious intent to minimize the voting strength of

a group of voters is a time-tested, judicially-manageable standard.

That justiciability is contingent on the availability

of judicially-manageable standards finds its genesis in

Baker v. Carr, 369 U.S. 186 (1962), where the Court distinguished the “political questions” inherent in cases

brought under the Guaranty Clause3 from those implicated in cases brought under the Fourteenth Amendment, such as partisan gerrymandering cases. In the

former, the Court explained that it had not been able

to identify a “set of judicially manageable standards

which courts could utilize independently in order to

identify a State’s lawful government.” Id. at 223.4

3

The Guaranty Clause requires the federal government to

“guarantee to every State in the Union a Republican Form of Government.” U.S. Const. art. IV, § 4.

4

The leading Guaranty Clause case in this respect is Luther

v. Borden, 48 U.S. 1 (1849), where the Court was asked to rule in

effect that the Dorr Rebellion’s alternative government was lawful, superseding Rhode Island’s charter government, because the

latter limited the vote to landowners. Chief Justice Taney, writing

for the Court, rejected the claim, and, in so doing, created the

15

Discrimination claims brought under the Fourteenth

Amendment, however, do not face this obstacle:

Nor need the appellants, in order to succeed

in this [Equal Protection] action, ask the

Court to enter upon policy determinations for

which judicially manageable standards are

lacking. Judicial standards under the Equal

Protection Clause are well developed and familiar, and it has been open to courts since the

enactment of the Fourteenth Amendment to

determine, if, on the particular facts, they

must, that a discrimination reflects no policy,

but simply arbitrary and capricious action.

Id. at 226.

A. Invidiousness Is an Accepted, JudiciallyManageable Standard

The settled benchmark for discrimination claims

brought under the Equal Protection Clause is invidiousness. See, e.g., Williams v. Rhodes, 393 U.S. 23, 3031 (1968) (noting that “we have . . . held that ‘invidious’ distinctions cannot be enacted without a violation

of the Equal Protection Clause”). This Court has consistently applied this standard to various types of

Equal Protection challenges to redistricting, including

racial gerrymandering, “one person, one vote,” and vote

dilution claims.5 In the past, this Court has also

“political question” doctrine. The decision, of course, predated the

enactment of the Fourteenth Amendment.

5

See, e.g., Reynolds v. Sims, 377 U.S. 533, 656-66 (1964) (a

redistricting plan impairs Fourteenth Amendment rights if it

16

suggested that invidiousness is relevant to the analysis of partisan gerrymandering claims.6 A standard

emphasizing the offensiveness of the line-drawers’ conduct is consistent with the Court’s traditional usage of

“invidiously discriminatory animus,” as acknowledged

by Justice Scalia in his discussion of that phrase by

this Court in Griffin v. Breckenridge, 403 U.S. 88

(1971):

The nature of the ‘invidiously discriminatory

animus’ Griffin had in mind is suggested both

by the language used in that phrase (‘invidious . . . [t]ending to excite odium, ill will, or

envy; likely to give offense; esp., unjustly

and irritatingly discriminating,’ Webster’s

Second International Dictionary 1306 (1954))

and by the company in which the phrase is

found (‘there must be some racial, or perhaps

employs “invidious discriminations based upon factors such as

race or economic status”); Rogers v. Lodge, 458 U.S. 613, 622 (1982)

(affirming finding that at-large system was being maintained “for

the invidious purpose of diluting the voting strength of the black

population”).

6

Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (multimember districts “may be vulnerable” to constitutional challenges “if

racial or political groups have been fenced out of the political process and their voting strength invidiously minimized”); Davis v.

Bandemer, 478 U.S. 109, 124 (1986) (“[d]iluting the weight of votes

because of place of residence impairs basic constitutional rights

under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race. . . .”) (quoting

Reynolds, 377 U.S. at 565-66); Vieth, 541 U.S. at 307 (Kennedy, J.,

concurring in the judgment) (a redistricting plan constitutes an

unconstitutional partisan gerrymander if political classifications

“were applied in an invidious manner or in a way unrelated to any

legitimate legislative objective”).

17

otherwise class-based, invidiously discriminatory animus,’ Griffin, 403 U.S., at 102, 91

S. Ct., at 353 (emphasis added)).

Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263, 274 (1993).

Not only has the overarching legal standard of invidiousness been firmly established in discriminatory

intent claims, but this Court has set clear guidelines

for approaching proof of invidiousness through both direct and circumstantial evidence. Vill. of Arlington

Heights, 429 U.S. at 266-68. These factors include the

impact of the official action, the specific sequence of

events leading up to the challenged decision, departures from the normal procedure and substantive departures from typical methods and manners of

decision-making, and legislative and administrative

history, including contemporary statements by members of the decision-making body. Id. Having regularly

applied the Arlington Heights factors, courts are seasoned in analyzing the invidiousness of alleged discriminatory practices. Invidiousness bears all of the

hallmarks of a judicially-manageable standard. In the

context of partisan gerrymandering, the invidiousness

standard would prohibit the drawing of a district’s

lines for the purpose of advantaging one political party

(or candidate) over another, such that the ability of voters to participate equally in the political process is substantially harmed.

18

B. The Court Should Adopt Such Subsidiary

Legal Standards As Are Relevant to the

Particular Type of Gerrymander

Partisan gerrymandering claims do not present an

absence of judicially-manageable standards, but, rather, as Justice Kennedy has termed it, a search for

“subsidiary” standards. Vieth, 541 U.S. at 314. In Justice Kennedy’s view, that search may be for ways of

quantifying the effect of the gerrymander. However, because partisan gerrymander cases come in so many different forms, it is not obvious that the same set of

subsidiary legal standards will apply to all partisan

gerrymander cases.

1. The Definition of the Type of Intent

Applicable to Pinpoint Gerrymander

Claims May Be Different from That

Applicable to Statewide Gerrymander Claims

The difference between the Wisconsin statewide,

post-census redistricting challenged in Whitford on the

one hand and the district-specific redistrictings in this

appeal and in Georgia in 2015 on the other demonstrates the need for flexibility in the definition of

the type of intent a partisan gerrymandering plaintiff

must prove.

For example, in statewide challenges courts have

used variations on “entrenchment” standards. The district court in Whitford employed a standard requiring

that the legislature possess “an intent to entrench a

19

political party in power” for the remainder of the decade, or “to make the political system systematically unresponsive to a particular segment of the voters based

on their political preference.” Whitford, 218 F. Supp. 3d

837, 887 & n.170, 896 (W.D. Wis. 2016). The district

court in the North Carolina redistricting case ruled

that “a plaintiff satisfies the discriminatory purpose of

intent requirement by introducing evidence establishing that the state redistricting body acted with an intent to ‘subordinate adherents of one political party

and entrench a rival party in power.’ ” Common Cause

v. Rucho, slip op. at 86 (quoting Ariz. State Leg., 135

S. Ct. at 2658).

The entrenchment standard may be applicable

when adjudicating a statewide redistricting plan. It

is not necessarily applicable in smaller-scale, subtler,

yet equally invidious, gerrymanders, such as the

district-specific claim in this appeal and the pinpoint,

mid-census redistricting enacted for the purpose of

making a handful of highly competitive districts safer

for incumbents of a political party that was already enjoying a super-majority, as occurred in Georgia in 2015.

In cases such as these, the evil alleged is the simple

practice of stacking the deck incrementally in a particular district, a concept the Court has recognized in its

racial gerrymandering jurisprudence. See, e.g., Cooper

v. Harris, 137 S. Ct. 1455, 1481-82 (2017) (holding

North Carolina Congressional Districts 1 and 12 were

racially gerrymandered); Bethune-Hill v. Va. State

Bd. of Elections, 137 S. Ct. 788, 799 (2017) (analyzing

whether race predominated in drawing 11 of 12

20

Virginia House of Delegate districts); Ala. Legislative

Black Caucus v. Alabama, 135 S. Ct. 1257, 1264 (2015)

(holding that analyzing racial gerrymandering in the

context of the state “as a whole” is legally erroneous

and the district court erred in concluding that race did

not predominate in the creation of Alabama Senate

Districts 7, 11, 22, or 26).

Depending on how “entrenchment” is defined,

and the particular circumstances of the case, an “entrenchment” standard might be applicable to a districtspecific gerrymander case. However, if “entrenchment”

is meant to require proof of durable effect of the gerrymander, it would not appear to fit pinpoint gerrymanders, where the evil is not durability, but simply the

use of political power for the sole purpose of drawing

lines to win the next election. A mid-census cycle linedrawing done for the express purpose of helping one

candidate win in one district is no less unlawful than

a once-in-a-decade redistricting for the express purpose of entrenching the majority party in power.

There is no need to shoehorn all cases into an “entrenchment” standard, when it is clear that something

less than entrenchment is constitutionally prohibited.

There is an existing intent standard that would easily

apply to both statewide and district-specific cases. In

Burns v. Richardson, a one person, one vote case, the

Court defined a multi-member apportionment scheme

as having a discriminatory effect if it is shown that,

“ ‘designedly or otherwise . . . under the circumstances

of a particular case, [it] would operate to minimize or

cancel out the voting strength of racial or political

21

elements of the voting population.’ ” 384 U.S. 73, 88

(1966) (emphasis added) (quoting Fortson v. Dorsey,

379 U.S. 433, 439 (1965)). This standard is consistent

with this Court’s pronouncements in partisan gerrymandering cases that an electoral district “may be vulnerable” to constitutional challenges “if racial or

political groups have been fenced out of the political

process and their voting strength invidiously minimized,” Gaffney v. Cummings, 412 U.S. 735, 754 (1973),

and that “each political group in a State should have

the same chance to elect representatives of its choice

as any other political group.” Bandemer, 478 U.S. at

124.

A standard focused on an invidious intent to minimize or cancel out the votes of certain elements of the

voting population based on their political association

is more rigorous than the “mere intent to disadvantage”

standard offered by the plurality in Bandemer, 478

U.S. 109.7 It also provides courts with the flexibility

needed to apply to both statewide and pinpoint gerrymanders because the affected “elements of the voting

population” can be located in a single district or

throughout the state.

Finally, it is a standard that is compatible with

treating partisan gerrymander claims as arising out of

the First Amendment, as is the claim in this appeal.

The district court in this case ruled that “the plaintiff

must allege that those responsible for the map redrew

7

Vieth, 541 U.S. at 285 (plurality opinion) (characterizing the

standard offered by the Bandemer plurality).

22

the lines of his district with the specific intent to impose a burden on him and similarly situated citizens

because of how they voted or the political party with

which they were affiliated.” Shapiro v. McManus, 203

F. Supp. 3d 579, 596 (D. Md. 2016) (emphasis in original). The court in the North Carolina redistricting case

described the First Amendment claim as one favoring

or disfavoring “individuals or entities that support a

particular candidate or political party.” Common Cause

v. Rucho, slip op. at 162-63. These formulations are consistent with one focusing on the minimizing or cancelling out the votes of particular political elements.8

Ideally, the Court should set a standard in this district-specific gerrymandering case that is sufficiently

broad and flexible to apply to cases such as that presented in a statewide gerrymander case. However, if

proof of some sort of durable “entrenchment” is deemed

essential to a statewide case such as Whitford, the

Court should make it clear that the different circumstances surrounding pinpoint redistricting may necessitate a different framework from the one used in

statewide gerrymandering cases.

8

Plaintiffs in other cases have also brought partisan gerrymander cases under the Elections Clause, U.S. Const. art. I, § 2.

Although invidiousness is not an express element of such claims,

the Clause has been construed as prohibiting the States, in the

exercise of their powers under that Clause, from infringing on

other constitutional rights. See generally Common Cause v. Rucho,

slip op. at 177-78 and cases cited therein.

23

2. There Are Accepted and Judicially

Manageable Standards as to the Level

of Intent Applicable to Pinpoint Gerrymandering Cases

Assuming invidiousness is the overarching standard, this Court must determine the level of intent

necessary to support a claim of partisan gerrymandering. In Vieth, the plurality rejected a “predominant”

standard as judicially unmanageable because it is

“indeterminate” and “vague.” Vieth, 541 U.S. at 284-85

(plurality opinion). In Bandemer, the plurality did not

appear to require that the partisan intent be the only

or even primary motivation. Bandemer, 478 U.S. at 127

(plurality opinion). More recently, the court in Common Cause v. Rucho rejected a “predominant” standard

as inconsistent with the Arlington Heights approach to

discriminatory intent. Common Cause v. Rucho, slip op.

at 84-85.

Again, because of the various forms of partisan

gerrymanders, there is a need for flexibility in determining the level of intent sufficient to support the

claim. In statewide challenges, given the multiplicity

of purposes that inform the statewide plan, the “predominant” standard may be difficult to apply, and it

should be sufficient for a plaintiff to prove that partisanship was “a” motivating factor for the line-drawing.

See Arlington Heights, 429 U.S. at 265-66 & n.11 (“[t]he

search for legislative purpose is often elusive enough

. . . without a requirement that primacy be ascertained”). Once invidious intent to gerrymander for partisan purposes is established, “the burden shifts to the

24

governmental defendant to prove that a legitimate

state interest or other neutral factor justified such discrimination,” Common Cause v. Rucho, slip op. at 145,

i.e., that the jurisdiction would have drawn the same

lines even without the discriminatory intent. Arlington

Heights, 429 U.S. at 270, n.21.

The same holds if the claim is viewed under the

First Amendment, as the “motivating-factor requirement in First Amendment retaliation claims parallels

the intent requirement in Equal Protection Claims.”

Common Cause v. Rucho, slip op. at 163. A plaintiff

“must show that her protected First Amendment activities were a ‘motivating factor’ behind the challenged

retaliatory action.” Common Cause v. Rucho, slip op. at

163 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 & n.2 (1977)).9

The Arlington Heights standard of discriminatory

intent being “a” motivating factor for the line-drawing

may be sufficient to support a claim of partisan gerrymandering in the pinpoint context also. However, if a

predominance standard is applied to these cases, as

some have suggested, these cases would be subject to a

9

In this context, the decision of the trial court below, requiring proof of a First Amendment gerrymander claim that “but for

the gerrymander, the challenged effect (here, the switch in political power in the Sixth District) would not have happened,” which

could be satisfied only by a showing that the plaintiffs’ candidate

would have won reelection had the original map remained intact,

Benisek, slip op. at 18, is not a correct statement of the law. It is

contrary to the rule in Mt. Healthy that the unconstitutional retaliatory intent need be only “a” motivating factor. See Benisek,

slip op. at 59-61 (Niemeyer, J., dissenting).

25

strict scrutiny analysis. Once predominant partisan

intent is found, the burden shifts to the State to

“demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest,” not

merely a legitimate state interest. Miller v. Johnson,

515 U.S. 900, 920-21 (1995).

Alternatively, the Court may adopt a flexible

standard as to the level of invidiousness necessary to

support a finding of unconstitutional partisan gerrymandering. The focus on the invidiousness of the

decision-making relieves the courts of the need to

adopt a one-size-fits-all subsidiary standard. The

stronger the evidence of invidiousness, the sounder

the basis for the Court to determine that the impact

of the line-drawing is caused by an unconstitutional

intent to minimize the voting strength of a particular

political element.

C. The Georgia Case Demonstrates the Sort

of Evidence Relevant to Pinpoint Gerrymander Claims

Applying the Arlington Heights factors to determining invidiousness in redistricting cases, these factors encompass not only express statements of

decision-makers’ intent, but also trial-tested evidence

such as using race as a proxy for party, deviations from

traditional districting principles, redistricting in the

middle of a census cycle, and other forms of manipulation that indicate the decision-maker strayed from

typical procedures or made substantive choices that

26

furthered no legitimate governmental interest. Additionally, of course, injurious effect must be proved. See,

e.g., League of United Latin Am. Citizens (“LULAC”) v.

Perry, 548 U.S. 399, 422 (2006) (addressing appellants’

contention that the Texas Legislature “intentionally

sought to manipulate” districts through their population variances). Of course, not all of these elements are

going to be present in every case, but some salient factors are laid out below. The Georgia case provides a

vivid example of some of these most important factors

at play.

1. Statements by Officials Involved in

the Line-Drawing Decision

As the court in Common Cause v. Rucho noted,

“the Supreme Court has never recognized that a legislature may draw district lines for the purpose of diminishing or minimizing the voting strength of supporters

of a particular party or citizens who previously voted

for representatives of a particular party. . . .” Common

Cause v. Rucho, slip op. at 62. Thus, direct evidence of

invidious intent such as express statements that the

purpose of the line-drawing was to favor one political

element may be virtually conclusive on the issue.

In the lawsuit brought by the Georgia redistricting plaintiffs, there are express, unequivocal admissions that the purpose of redistricting was to protect

Republican incumbents. Indeed, one staff member of

the Legislative and Congressional Reapportionment

Office (the “Reapportionment Office”) confirmed that

he generally understood one of his roles to be that of

27

maintaining Republican control of the Georgia General Assembly. [O’Connor Depo. at pp. 51-52].

Gina Wright, the Executive Director of the Reapportionment Office, is the individual who, at the request and consent of incumbent Republican legislators

Chandler and Strickland, redrew the maps for Georgia

House Districts 105 and 111 in 2015. [Deposition of

Gina Wright taken in Georgia State Conference of the

NAACP, et al. v. State of Georgia, et al., ___ F. Supp. 3d

___, 2017 WL 3698494 (Aug. 25, 2017) (“Wright

Depo.”), available at https://lawyerscommittee.org/wpcontent/uploads/2018/01/112017WrightFull.pdf ]. The

changes proposed by Ms. Wright to those districts were

then adopted and passed into law by the Republican

majority in the Georgia General Assembly through

H.B. 566. Ms. Wright freely admitted that the reason

for the changes to Districts 105 and 111 was to keep

the incumbent Republicans safe in their campaigns for

reelection or, in her words, to give them a “political

boost.” Id. at 22, 219.

As Ms. Wright further testified, the “objective [for

the redistricting] was to make these districts, if at all

possible anyway, better for these incumbents to get

reelected. . . .” [Wright Depo. at p. 30]. When asked

what the representatives from District 105 and District 111 “wanted to achieve” when they came to her

office for help, she confirmed: “[t]hey were looking for

a political advantage. . . .” [Wright Depo. at pp. 21-22].

As to her efforts to help Representative Chandler from

District 105, Ms. Wright agreed that “part of the conversation was about [Chandler] trying to maximize the

28

chances of her being able to retain her seat.” [Wright

Depo. at p. 23]. As to her efforts to help Representative

Strickland of District 111, Ms. Wright admitted that it

would “be fair to say that the goal was for Representative Strickland in 111 to be able to maintain his seat.”

[Wright Depo. at pp. 27-29; 175-77].

Ms. Wright also freely admitted that there is a correlation between race and partisanship in the State of

Georgia, and that fact was taken into consideration in

redrawing the maps for both Districts 105 and 111.

[Wright Depo. at pp. 29-32]. Ms. Wright specifically testified that racial demographics were considered when

the maps were drawn. [Wright Depo. at pp. 29-32].

2. The Use of Race to Achieve a Partisan End in Line-Drawing

The use of race as a proxy for partisan goals

has been a recurring theme in redistricting litigation

over the years, which shows no sign of abating.10

10

See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1476-77 & n.7

(2017) (rejecting State claim that politics alone drove drawing of

congressional district, not race: “In other words, the sorting of voters on the grounds of their race remains suspect even if race is

meant to function as a proxy for other (including political) characteristics.”); LULAC v. Perry, 548 U.S. 399, 440 (2006) (rejecting

claim that redrawing of Congressional district was primarily for

political, not racial, reasons); Perez v. Abbott, No. 5:11-cv-00360OLG-JES-XR, 2017 WL 3495922 at *41 (W.D. Tex. Aug. 15, 2017)

(describing State’s purpose of adding significant population from

Travis County into Congressional District 35 was “to use race as

a tool for partisan goals”); id., 2017 WL 1450121 at *14-16 (W.D.

Tex. Apr. 20, 2017) (rejecting excuse that increasing or maintaining the Spanish surname voter percentage while simultaneously

29

Unfortunately, this is precisely what the Georgia Legislature did when redrawing Georgia State House of

Representatives Districts 105 and 111 in 2015. See

Georgia State Conf. of the NAACP, 2017 WL 3698494,

at *12. The evidence in that case demonstrates that the

Reapportionment Office knew that Districts 105 and

111, through recent demographic shifts, were becoming perilously close to having a 40 percent AfricanAmerican voter registration. [O’Connor Depo. at pp.

140-41, 156]. Personnel in the Reapportionment Office

confirm that as a significant metric to maintaining Republican control over a district; indeed, once the African-American population of a district reached that

level, it virtually ensured that Democrats would win

the district. [O’Connor Depo. at pp. 141-42, 153-56].

The Reapportionment Office also knew that, as a result of this metric, both Representatives Chandler

and Strickland had come very close to losing their

reelection campaigns in 2014. [O’Connor Depo. at

pp. 65, 66, & 141-42; Wright Depo. at pp. 193-96;

Wright Depo. Exhibit 38]. The math was simple: to

preserve the safety of these Republican incumbents

in any reelection challenge, would require cutting

the African-American percentage of the population in

the districts, and specifically the African-American

and intentionally minimizing Latino voters’ ability to elect in

State House Districts 78 and 117 was partisan gerrymandering);

id., 2017 WL 962947, at *59 (W.D. Tex. Mar. 10, 2017) (describing

“mapdrawers as willing to disadvantage minorities to gain partisan advantage . . . and that they were willing to use race to gain

partisan advantage . . . and limit the number of Democrat districts overall”).

30

registered voters in Districts 105 and 111. And that is

precisely what the Georgia Legislature did.

Employing race to further partisan interests is per

se evidence of an invidious politically discriminatory

intent. This may occur by using racial data as a proxy

for partisan performance, intentionally packing or

cracking minority communities, using arbitrary numerical racial thresholds not based on evidence of minority voters’ ability to elect candidates of their choice,

splitting voting precincts or voting tabulation districts

using racial data, artificially inflating the minority

percentage in a low-turnout district to benefit the

other political party, or other means.

It is important for the Court to clarify that using

race as a proxy for party is an indicium of invidiousness in partisan gerrymander cases because courts

have not been uniform in their response to the defense of partisanship in racial discrimination cases.11

11

See, e.g., Miller v. Johnson, 515 U.S. 900, 914 (1995) (stating

that the “use of race as a proxy” for “political interest[s]” is “prohibit[ed]”); League of United Latin American Citizens v. Perry, 548

U.S. 399, 440 (2006) (finding that the Texas redistricting plan bore

“the mark of intentional discrimination” on the basis of race when

the legislature used racial considerations to achieve a partisan

result); Veasey v. Abbott, 830 F.3d 216, 241 (5th Cir. 2016) (en banc)

(discussing the rapid increase in minority populations in Texas

such that “the party currently in power is ‘facing a declining voter

base and can gain partisan advantage’ through a strict voter ID

law” was evidence that could support a finding of intentional discrimination based on race); N.C. State Conf. of NAACP v. McCrory,

831 F.3d 204, 222 (4th Cir. 2016) (“intentionally targeting a

particular race’s access to the franchise because its members

vote for a particular party, in a predictable manner, constitutes

31

Discriminating on the basis of race to achieve a partisan goal should not be a defense against a racial discrimination claim. Even if partisanship were a

legitimate goal, using a suspect classification as the

means of achieving that goal is unconstitutional. See,

e.g., Packingham v. North Carolina, 137 S. Ct. 1730,

1732 (2017) (holding that a North Carolina law preventing sex offenders from using social media for the

purpose of protecting vulnerable victims was unconstitutional because it was unnecessarily burdensome on

First Amendment rights); Price Waterhouse v. Hopkins,

490 U.S. 228, 241 (1989) (identifying the standard under Title VII when a plaintiff proves that her gender

discriminatory purpose”); Perez v. Abbott, 2017 WL 962947, at *63

(W.D. Tex. Mar. 10, 2017) (finding that the redistricting plan was

intentionally discriminatory because the legislature drew the

plan on the basis of race “using race as a proxy for voting behavior”); Patino v. City of Pasadena, 230 F. Supp. 3d 667, 727-28 (S.D.

Tex. Jan. 6, 2017) (finding that “[b]y clearly and explicitly intending to diminish Latinos’ voting power for partisan ends, Pasadena

officials intentionally discriminated on the basis of race”); contra

Rodriguez v. Harris Cty., Tex., 964 F. Supp. 2d 686, 804 (S.D. Tex.

2013) (declining to find racial considerations “steered the redistricting process” because “proclivities” of Latinos to vote Democratic and Anglos to vote Republican, “without more, cannot

transform partisanship into race discrimination”); Cano v. Davis,

211 F. Supp. 2d 1208, 1248 (C.D. Cal. 2002) (California legislature

had non-racial goals such as “protecting incumbents” and “advancing partisan interests” and the redistricting plan was therefore not intentionally discriminatory); Martinez v. Bush, 234

F. Supp. 2d 1275, 1296-98 (S.D. Fla. 2002) (finding that the

“Republican-controlled legislature intended to maximize the

number of Republican congressional and legislative seats through

the redistricting process” and engaged in a “raw exercise of majority legislative power” but did not intentionally discriminate on

the basis of race).

32

played a motivating part in an employment decision);

Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (Nebraska

law prohibiting teaching any language other than English through eighth grade, enacted to promote civic development, violated the Fourteenth Amendment). In

the context of a partisan gerrymandering claim, it is

itself an indication that the jurisdiction is acting unconstitutionally.

3. Modifying a Plan Mid-Decade

If a legislature modifies a legitimately drawn,

legislatively-enacted plan compliant with the one person, one vote principle, and enacts an unnecessary

mid-census redistricting plan solely for the purpose of

making swing districts less competitive to the benefit

of the party in power, that is an indicium of an invidious partisan motive.

Again, the 2015 Georgia State House redistricting

plan is an instructive example of a mid-census redistricting enacted with such an invidious intent. There,

the Georgia Legislature needlessly redrew district

boundaries that complied with the one person, one vote

principle and had survived scrutiny by the Department of Justice. See Georgia State Conf. of the NAACP,

2017 WL 3698494, at *2. Its purpose in doing so was to

move the goal posts to help white Republican incumbents who had narrowly defeated black Democratic

challengers in swing districts that were experiencing

an increase in minority voter registration percentage

33

due to demographic changes.12 Georgia State Conf. of

the NAACP, 2017 WL 3698494, at *2-3. In the case of

State House District 105, Representative Joyce Chandler won by 554 votes in 2012 and 789 votes in 2014,

and has since acknowledged that her district is becoming increasingly “diverse.” In the 2016 election, under

the new lines, Chandler prevailed by 222 votes. See id.

at *2.

4. Deviation from Traditional Districting Principles

While a jurisdiction can engage in invidious discrimination even if it complies with traditional districting principles, Bethune-Hill v. Va. State Bd. of

Elections, 137 S. Ct. 788, 799 (2017), failure to comply

with such principles is evidence of discriminatory

intent. Those traditional principles include, among

other things, considerations of maintaining population

12

While this Court confirmed in League of United Latin

American Citizens v. Perry (LULAC) that the Constitution does

not prohibit mid-decade redistricting per se, mid-decade modifications of the swing districts by the same party that drew the lines

merit scrutiny, particularly when that party has already achieved

super-majority status. In LULAC, the Supreme Court stated that

(1) partisan gain was not necessarily the “sole motivation” for the

entire redistricting plan, id. at 417; (2) the Republican legislature

was replacing a court-ordered plan, which had previously entrenched the Democrats, a party on the verge of minority status,

id. at 416, 419; and (3) the new plan made the “party balance more

congruent to statewide party power.” Id. at 419. As noted above,

the facts of the Georgia redistricting are easily distinguishable

from those in LULAC.

34

equality, geographic compactness, and avoiding the

splitting of precincts and counties.

In the lawsuit brought by the Georgia redistricting plaintiffs, there are numerous examples of the failure by the General Assembly to comply with

traditional districting principles in drawing the maps

for Districts 105 and 111, and the only real explanation

for the failure to do so was the goal of protecting Republican incumbents. [Wright Depo. at pp. 22 & 219;

Expert Report of Jowei Chen, filed in Georgia State

Conference of the NAACP, et al. v. State of Georgia, et

al., ___ F. Supp. 3d ___, 2017 WL 3698494 (Aug. 25,

2017), ECF Doc. No. 63-1 (“Chen Expert Report”) at pp.

26-32].

The 2015 Plan, for example, created more significant population deviations for both Districts 105 and

111, [Chen Expert Report at pp. 26-28], and worsened

the geographic compactness of both Districts 105 and

111. [Chen Expert Report at p. 29]. Additionally, in

House District 111, the 2015 Plan substantially increased the number of split precincts from two to five.

Indeed, the 2015 Plan split precincts, counties, and cities. [Chen Expert Report at pp. 29-32]. Thus, there was

a significant violation of traditional districting principles in redrawing Districts 105 and 111. [Chen Expert

Report at pp. 26-32].

5. Injurious Effect

Disproportionality in the results of statewide elections – i.e., the gap between a party’s vote share and

35

seat share in a state – does not in and of itself prove an

unconstitutional statewide partisan gerrymander.

Bandemer, 478 U.S. at 130-31. However, when combined with other factors, it can support the conclusion

of an invidious intent to minimize the voting strength

of a discrete political element. The same is true of other

statewide measures of impact such as asymmetry (the

extent to which the percent of votes of one party does

not translate to the percent of votes achieved by the

opposing party) or the efficiency gap.

Such statewide measures of impact, however, are

not applicable to pinpoint gerrymanders, because proof

of impact in such cases does not involve a comparison

with other districts, but only the actual or projected

election result. In Georgia in 2012 and 2014, white Republican incumbents barely beat African-American

Democrats in districts where the minority registered

voter percentage was steadily increasing due to demographic changes. In 2015, the Legislature responded by

cutting neighborhoods of African-American Democratic voters out of those districts. See Georgia State

Conf. of the NAACP, 2017 WL 3698494, at *12. A quantification of statewide disproportionality, asymmetry,

or efficiency gap would not instruct on the discriminatory impact of the line-drawing. Rather, the proof of impact would be in the form of past election results

and/or projected future election results, i.e., showing

that elections were tight, that specific groups were targeted for exclusion or inclusion in the district, and that

the line-drawing party continued to win, or could be

projected to win. See Bandemer, 478 U.S. at 141

36

(plurality opinion) (combining the district configurations “with vote projections to produce future election

results. . . .”).

Again, the Georgia case provides illustrative

proofs. The Reapportionment Office was successful in

achieving its goals. Both Chandler and Strickland won

their subsequent reelection challenges, something the

Reapportionment Office admits would not have happened but for the changes to the district maps in 2015.

[O’Connor Depo. p. 90].

Under no circumstances, however, should the burden be placed on plaintiffs pressing claims of partisan

gerrymandering to prove that their candidates have already lost elections solely because of the challenged

line-drawing. Such a requirement would delay suit until after the gerrymander had governed at least one

election and thus allow legislatures to reap the benefits of their invidious intent. This is particularly so in

the case of pinpoint gerrymanders, where changes may

be implemented with every new legislative election cycle, as they were in a succession of Georgia Legislative

sessions.

D. The Court Should Allow the Contours

of Subsidiary Legal Standards and Evidence Relevant to Gerrymander Cases

to Evolve

Because partisan gerrymander cases come in so

many forms, there is no need for the Court to announce

all subsidiary legal and evidential standards that are

37

applicable to all cases. Indeed, it would be a mistake to

do so. The same evidence that is relevant to a statewide

redistricting on the heels of a census cycle is unlikely

to apply to a mid-decade manipulation of the lines of a

single district. The courts, guided by general legal

standards set forth by this Court, may devise the subsidiary standards on a case-by-case basis, as they

evolve over time, precisely the way other constitutional

jurisprudence has developed.

This is what happened in the cognate area of one

person, one vote cases after Baker v. Carr, 369 U.S. 186

(1962). In Reynolds v. Sims, 377 U.S. 533 (1964), the

Court declined to employ a specific substantive standard in the course of concluding that Alabama’s apportionment plans violated the Equal Protection Clause,

instead simply declaring that “the deviations from a

strict population basis are too egregious . . . to be constitutionally sustained.” 377 U.S. at 568-69. While

Chief Justice Warren declared in Reynolds that “mathematical nicety is not a constitutional requisite” when

adjudicating one person, one vote cases under the

Equal Protection Clause, id. at 569, the Court would

later reverse course and determine that certain numerical thresholds were in fact appropriate. By not defining the limits of the one person, one vote principle

at the outset, Carr and Reynolds gave lower courts latitude to rein in severe malapportionment in the short

term while allowing the Court to develop workable and

easily-communicable legal and evidential standards in

future cases.

38

Particularly in regard to the use of statistical

methods to prove impact – whether in statewide or pinpoint claims – trial courts can exercise their role as

gate-keepers, applying the time-tested standards of

Daubert. Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579 (1993).

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, the Court should hold

that partisan gerrymandering claims are justiciable

and subject to a judicially-manageable standard of invidiousness applicable to the variety of gerrymanders,

including the pinpoint gerrymander enacted by the

Georgia Legislature in 2015.

Respectfully submitted,

WILLIAM V. CUSTER

KRISTEN CLARKE

JENNIFER B. DEMPSEY

JON GREENBAUM

EZRA D. ROSENBERG

BRYAN CAVE LLP

Counsel of Record

1201 W. Peachtree St.

Atlanta, GA 30312

JULIE HOUK

JOHN POWERS

(404) 572-6600

bill.custer@

LAWYERS’ COMMITTEE FOR

bryancave.com

CIVIL RIGHTS UNDER LAW

1401 New York Ave., NW, Suite 400

Washington, DC 20005

(202) 662-8600

erosenberg@lawyerscommittee.org

Counsel for Amici Curiae the Georgia State Conference

of the NAACP, Lavelle Lemon, Marlon Reid, Celeste

Sims, Patricia Smith, and Coley Tyson

39

BRADFORD M. BERRY

JANETTE M. LOUARD

KHYLA D. CRAINE

THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, INC.

OFFICE OF GENERAL COUNSEL

4805 Mount Hope Drive

Baltimore, MD 21215

(410) 580-5777

bberry@naacpnet.org

Counsel for Amici Curiae the National Association

for the Advancement of Colored People, Inc.