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 AMICI CURIAE JUDICIAL

WATCH, INC. AND ALLIED EDUCATIONAL

FOUNDATION IN SUPPORT OF NEITHER

PARTY

_________

T. Russell Nobile

WISE CARTER CHILD &

CARAWAY, P.A.

2510 14th Avenue,

Suite 1125

Gulfport, MS 39501

(228) 867-7141

trn@wisecarter.com

Robert D. Popper

Counsel of Record

Chris Fedeli

JUDICIAL WATCH, INC.

425 Third Street SW

Washington, DC 20024

(202) 646-5172

rpopper@judicialwatch.org

Counsel for Amici Curiae

Dated: January 29, 2018

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

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

INTERESTS OF THE AMICI CURIAE .....................1

SUMMARY OF ARGUMENT.....................................3

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

I.

NEITHER THIS CASE NOR GILL HAS SET

FORTH A JUDICIALLY MANAGEABLE

WAY TO ADJUDICATE CLAIMS OF

PARTISAN GERRYMANDERING..................4

II.

ANY STANDARD TO IDENTIFY PARTISAN

GERRYMANDERING MUST BE

GROUNDED IN TRADITIONAL

DISTRICTING PRINCIPLES ..........................8

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

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Benisek v. Lamone,

266 F. Supp. 3d 799 (D. Md. 2017) ..................2, 6

Benisek v. Mack, 11 F. Supp. 3d 516 (D. Md. 2014),

aff’d 584 F. App’x 140 (4th Cir. 2014),

rev’d sub nom. Shapiro v. McManus,

136 S. Ct. 450 (2015).............................................2

Bush v. Vera, 517 U.S. 952 (1996) .............................8

Cox v. Larios, 542 U.S. 947 (2004) ............................7

Davis v. Bandemer, 478 U.S. 109 (1986) ................4, 9

Fletcher v. Lamone, 831 F. Supp. 2d 887

(D. Md. 2011), aff'd,

567 U.S. 930 (2012)...............................................2

Gaffney v. Cummings, 412 U.S. 735 (1973) ..............7

Gorrell v. O’Malley,

No. WDQ-11-2975,

2012 U.S. Dist. LEXIS 6178

(D. Md. Jan. 19, 2012) .........................................2

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ..............................................8

Miller v. Johnson, 515 U.S. 900 (1995) ..................8, 9

iii

Olson v. O’Malley,

No. WDQ-12-0240,

2012 U.S. Dist. LEXIS 29917

(D. Md. Mar. 6, 2012) ...........................................2

Parrott v. Lamone,

2016 U.S. Dist. LEXIS 112736

(D. Md. Aug. 24, 2016),

appeal dismissed, 137 S. Ct. 654 (2017) ........3, 11

Reno v. Bossier Par. Sch. Bd.,

520 U.S. 471 (1997) ..............................................9

Shapiro v. McManus,

203 F. Supp. 3d 579 (D. Md. 2016) ..................2, 6

Shaw v. Reno, 509 U.S. 630 (1993) ............................9

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

Whitford v. Gill,

218 F. Supp. 3d 837 (W.D. Wis. 2016) ............2, 6

STATE CASES

Parrott v. McDonough, Case No. 1445 (Md. Ct. Spec.

App. July 23, 2014) (available at

https://goo.gl/cQa67S), cert. denied, 440 Md. 226

(2014) ................................................................... 2

Whitley v. State Bd. of Elections,

429 Md. 132 (2012) .............................................. 2

iv

OTHER AUTHORITIES

Brief for Judicial Watch and Allied Educational

Foundation as Amici Curiae Supporting Appellants,

Gill v. Whitford, No. 16-1161 ................................3, 6

Petitioners’ Jurisdictional

Statement, Parrot v. Lamone,

No. 16-588, appeal dismissed,

137 S. Ct. 654 (2017) .................................................11

1

INTERESTS OF THE AMICI CURIAE 1

Judicial Watch, Inc. (“Judicial Watch”) is a

nonpartisan, nonprofit § 501(c)(3) educational

foundation that seeks to promote transparency,

integrity, and accountability in government and

fidelity to the rule of law. Judicial Watch regularly

files amicus curiae briefs to advance its public

interest mission and has appeared as amicus curiae

in this Court on several occasions.

The Allied Educational Foundation (“AEF”) is a

501(c)(3) nonprofit charitable and educational

foundation based in Englewood, New Jersey.

Founded in 1964, AEF is dedicated to promoting

education in diverse areas of study. AEF regularly

files amicus curiae briefs as a means to advance its

purpose and has appeared as an amicus curiae in this

Court on a number of occasions.

In this case, the plaintiffs filed suit in the U.S.

District Court for the District of Maryland alleging

that Maryland’s 2011 congressional redistricting

statute

was

an

unconstitutional

partisan

gerrymander, violating the First Amendment and art.

I, § 2. 2 Benisek v. Lamone, 266 F. Supp. 3d 799 (D.

Amici state that no counsel for a party to this case authored

this brief in whole or in part; and no person or entity, other than

amici and its counsel, made a monetary contribution intended to

fund the preparation and submission of this brief. Appellant and

respondent both have filed blanket consents to the filing of

amicus curiae briefs.

1

Maryland’s 2011 congressional redistricting may be the

most extreme, and effective, congressional gerrymander in the

nation. Unsurprisingly, it has been the subject of near-constant

2

2

Md. 2017). A divided panel denied the plaintiff’s

motion for preliminary injunction and stayed

proceedings pending this Court’s ruling in Gill v.

Whitford, No. 16-1161. See also Whitford v. Gill, 218

F. Supp. 3d 837 (W.D. Wis. 2016). In its ruling, the

district court applied an earlier ruling from the

proceedings wherein the panel set forth the standard

for determining whether a districting plan was

unconstitutionally partisan. Shapiro v. McManus

(“Shapiro II”), 203 F. Supp. 3d 579, 596-97 (D. Md.

2016). Evaluating that standard in the context of a

motion for preliminary relief, the district court held

that plaintiffs had not shown a likelihood that they

would prevail on the merits. Benisek, 266 F. Supp.

3d. at 802.

Amici are experts in the important political and

constitutional

questions

concerning

partisan

gerrymandering that are raised by the district court’s

decision. Amici believe, moreover, that partisan

gerrymandering gives rise to a justiciable

constitutional claim, and they have argued for their

own standard based on violations of traditional

litigation. See Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md.

2011), aff'd, 567 U.S. 930 (2012); Gorrell v. O’Malley, No. WDQ11-2975, 2012 U.S. Dist. LEXIS 6178 (D. Md. Jan. 19, 2012);

Olson v. O’Malley, No. WDQ-12-0240, 2012 U.S. Dist. LEXIS

29917 (D. Md. Mar. 6, 2012); Benisek v. Mack, 11 F. Supp. 3d 516

(D. Md. 2014), aff’d 584 F. App’x 140 (4th Cir. 2014), rev’d sub

nom. Shapiro v. McManus, 136 S. Ct. 450 (2015); Shapiro II, 203

F. Supp. 3d 579 (D. Md. 2016); see also Whitley v. State Bd. of

Elections, 429 Md. 132 (2012); Parrott v. McDonough, Case No.

1445 (Md. Ct. Spec. App. July 23, 2014) (available at

https://goo.gl/cQa67S), cert. denied, 440 Md. 226 (2014).

3

districting criteria during their own challenge to the

same congressional redistricting plan in Maryland.

See Parrott v. Lamone, 2016 U.S. Dist. LEXIS 112736

(D. Md. Aug. 24, 2016), appeal dismissed, 137 S. Ct.

654 (2017). Amici previously appeared as amici in

Gill, discussing the numerous practical shortcomings

of the “efficiency gap” analysis proposed by the

plaintiffs in that case. See Brief for Judicial Watch

and Allied Educational Foundation as Amici Curiae

Supporting Appellants at 4-15, Gill v Whitford, No.

16-1161.

SUMMARY OF ARGUMENT

Before it accepts the invitation posed by this case

and by Gill to attempt to distinguish unconstitutional

gerrymandering from ordinary political redistricting,

this Court must be certain that courts are equipped to

tell the difference. As Justice Kennedy has explained,

this will require the Court to develop manageable and

politically

neutral

standards

for

detecting

gerrymandering, and to apply those standards in a

way that confines the Court’s role in what is an

inherently political endeavor. Vieth v. Jubelirer, 541

U.S. 267, 307-08 (Kennedy, J., concurring in

judgment).

Neither the standard developed in this case nor

the standard adopted by the district court in Gill

satisfies these concerns. Any legal approach to the

problem of unconstitutional partisan gerrymandering

must go beyond these standards, which may be

described, in a word, as “partisan intent plus partisan

effect.” Amici submit this brief to the Court in

4

support of a single point: that any workable approach

to proscribing partisan gerrymandering must also

consider whether mapmakers have violated

traditional districting principles. Legal frameworks

embodying this approach have been proposed before –

for example, by Justice Souter in dissent in Vieth, 541

U.S. at 347-351.

Traditional districting principles, such as

compactness, contiguity, and respect for established

political boundaries have been bedrock considerations

under this Court’s redistricting jurisprudence for

decades, and there is no reason to discard them in

favor of untried standards that rely entirely on what

legislators say (or, in future, learn not to say) and on

the unpredictable fortunes of political parties. Much

less is there any reason to follow currently favored

social science theories that disregard decades of

practical knowledge and jurisprudence concerning

the process of drawing district lines.

ARGUMENT

I.

NEITHER THIS CASE NOR GILL HAS

SET FORTH A JUDICIALLY

MANAGEABLE WAY TO ADJUDICATE

CLAIMS OF PARTISAN

GERRYMANDERING.

In Bandemer, this Court held that a plaintiff

could state a justiciable claim for partisan

gerrymandering. Davis v. Bandemer, 478 U.S. 109,

113 (1986). In the three decades since Bandemer no

claim of partisan gerrymandering has ever succeeded

5

and no court has been able to identify a judicially

discernable

and

manageable

standard

for

adjudicating such claims. The Court must determine

which, if any, party in this case or in Gill has finally

identified a judicially discernable and manageable

standard. The appellants in this case claim they

have. Amici disagree.

Any

standard

addressing

partisan

gerrymandering must overcome the two obstacles

identified by Justice Kennedy in Vieth. The first

obstacle is that the standard needs to include

comprehensive and neutral principles for drawing

electoral boundaries.

Vieth, 541 U.S. at 307

(Kennedy, J. concurring in judgment).

Those

principles need to contain clear, manageable, and

politically neutral standards for measuring “fair and

effective representation for all citizens” and any

burdens on representational rights resulting from

districting. Id. Second, the standard needs to

incorporate rules that limit and confine judicial

intervention. Id. at 307-08. Neither of the two

standards before this Court overcomes these

obstacles.

The standard selected by the district court in this

case requires plaintiffs to prove (1) that those

responsible for the map redrew the lines of plaintiffs’

district with the specific intent to impose a burden on

plaintiffs and similarly situated citizens based on how

they voted or the political party affiliation; (2) that the

challenged map diluted the votes of the targeted

citizens to such a degree that it resulted in a tangible

and concrete adverse effect; and (3) that, absent the

6

mapmakers’ intent to burden a particular group of

voters by reason of their views, the concrete adverse

impact would not have occurred. Benisek, 266 F.

Supp. 3d at 802 (citing Shapiro II, 203 F. Supp. 3d at

596-97). In setting forth this standard, the district

noted:

the standard that the Western District of

Wisconsin has endorsed is remarkably

similar . . . “We conclude,” the Wisconsin

court wrote, “that the First Amendment and

the Equal Protection clause prohibit a

redistricting scheme which (1) is intended to

place a severe impediment on the

effectiveness of the votes of individual

citizens on the basis of their political

affiliation, (2) has that effect, and (3) cannot

be justified on other, legitimate legislative

grounds.” Whitford, 218 F. Supp. 3d at 884.

Benisek, 266 F. Supp. 3d at 814.

Without more, these standards are hopelessly

inadequate as way to identify and proscribe

unconstitutional partisan gerrymandering, for

several reasons. 3 To begin with, the emphasis on

direct evidence of intent will simply ensure that any

frank discussion of the practice of redistricting will be

These problems were well explored in greater detail in the

briefing on this issue and Judge Grisbach’s dissent in Gill.

Whitford v. Gill, 218 F. Supp. 3d at 947-65 (W.D. Wis. 2016)

(Griesbach, J. dissenting) and Brief for Judicial Watch and

Allied Educational Foundation as Amici Curiae Supporting

Appellants at 13-15, Gill v. Whitford, No. 16-1161.

3

7

driven underground, or into oral discussions rather

than in documents. Mapmakers will never again be

as unguarded as they were in Maryland and

Wisconsin, and relevant admissions will become rare.

Further, the impact of a partisan gerrymander on

electoral outcomes is difficult to disaggregate from a

thousand other often immeasurable factors that affect

elections. “Wave” elections, personalities, transient

issues, news stories, economic interests, and national

politics all play a role in determining electoral

outcomes. Social science theories that claim the

ability to somehow isolate the effect of political

gerrymandering – such as the currently fashionable

“efficiency gap” theory – are, at best, unproven, and

at worst, junk science. The consequences of getting it

wrong, moreover, are enormous, and potentially

entail courts setting aside valid elections and

ordering shifts in electoral power between and among

political parties, on arbitrary grounds.

The district courts’ standards do not provide any

principled way to distinguish between the politics

that inescapably accompanies redistricting and the

more extreme partisanship that leads to extreme

gerrymandering.

As the Court has frequently

recognized, districting is partisan by nature. See Cox

v. Larios, 542 U.S. 947, 952 (2004) (Scalia, J.

dissenting) (suggesting that “politics as usual” is a

“traditional” redistricting criterion); Gaffney v.

Cummings, 412 U.S. 735, 753 (1973) (“The reality is

that districting inevitably has and is intended to have

substantial political consequences.”); Vieth, 541 U.S.

at 285 (“The Constitution clearly contemplates

districting by political entities, see Article I, § 4, and

8

unsurprisingly that turns out to be root-and-branch a

matter of politics.”) (plurality opinion; Miller v.

Johnson, 515 U.S. 900, 915 (1995) (“Electoral

districting is a most difficult subject for legislatures,

and so the States must have discretion to exercise the

political judgment necessary to balance competing

interests.”). Because the district courts’ standards

apply to and limit even constitutionally permissible

partisan districting activities, they are overly broad.

Their inability to tell the “average” from the truly bad

will ensure that every redistricting case will become

a federal case.

Ultimately, the use of these standards will lead to

the transfer of the responsibility for redistricting from

state legislatures to the federal courts – which will

still be left without a clear and principled way to

conduct that redistricting. More is needed if a

standard is to ensure that only impermissible

partisan gerrymandering is proscribed.

II.

ANY STANDARD TO IDENTIFY

PARTISAN GERRYMANDERING MUST

BE GROUNDED IN TRADITIONAL

DISTRICTING PRINCIPLES.

This Court has a long history of considering and

evaluating jurisdictions’ adherence to traditional

districting principles such as contiguity, compactness,

and preserving the integrity of political subdivisions.

Vieth, 541 U.S. at 284; Bush v. Vera, 517 U.S. 952, 960

(1996) (affirming finding that Texas districts did not

conform to traditional districting principles); League

of United Latin Am. Citizens v. Perry, 548 U.S. 399,

9

463 n.5 (2006) (Stevens, J. dissenting) (discussing

consideration of traditional districting principles in

other cases); Reno v. Bossier Par. Sch. Bd., 520 U.S.

471, 488 (1997) (noting different inferences that can

be drawn from evaluating whether jurisdiction

chooses districting plans that comply with traditional

redistricting principles); Miller, 515 U.S. at 916

(“Where these or other race-neutral considerations

are the basis for redistricting legislation, and are not

subordinated to race, a State can defeat a claim that

a district has been gerrymandered on racial lines.”)

(citations omitted); Shaw v. Reno, 509 U.S. 630, 647

(1993) (traditional redistricting criteria, as objective

factors, may serve to defeat a claim that a district has

been gerrymandered on racial lines).

Four justices in Vieth recognized the importance

of traditional redistricting principles.

Justice

Stevens’ argued in dissent that subversion of

traditional districting principles is critical to

determining that partisanship was a jurisdiction’s

sole motivation. Vieth, 541 U.S. at 318. And Justices

Souter’s dissent, which Justice Ginsburg joined,

explained that a plaintiff pursuing a political

gerrymandering claim must begin by showing that

the district of his residence paid little or no heed to

those “traditional redistricting principles whose

disregard can be shown straightforwardly.” Vieth,

541 U.S. at 348 (Souter, J., dissenting); see also

Bandemer, 478 U.S. at 173 (Powell, J., concurring in

part and dissenting in part) (of the factors that

“should guide both legislators who redistrict and

judges who test redistricting plans against

constitutional challenges,” the “most important . . .

10

are the shapes of voting districts and adherence to

established

political

subdivision

boundaries”)

(citations omitted).

Indeed, amici respectfully submit that Justice

Souter’s standard serves as an example of a more

complete and workable approach to identifying

partisan gerrymandering. Under that standard, a

plaintiff would need to make a prima facie showing of

five elements in order to challenge a specific singlemember district. First, “the resident plaintiff would

identify a cohesive political group to which he

belonged, which would normally be a major party.”

Id. at 347 (Souter, J., dissenting). Second, “a plaintiff

would need to show that the district of his residence .

. . paid little or no heed to those traditional districting

principles whose disregard can be shown

straightforwardly: contiguity, compactness, respect

for political subdivisions, and conformity with

geographic features like rivers and mountains.” Id.

at 347–48 (citations omitted). “Third, the plaintiff

would need to establish specific correlations between

the district’s deviations from traditional districting

principles and the distribution of the population of his

group.” Id. at 349. “Fourth, a plaintiff would need to

present the court with a hypothetical district” in

which the plaintiff’s group was not as badly

gerrymandered “and which at the same time deviated

less from traditional districting principles than the

actual district.” Id. (citations omitted). “Fifth, and

finally, the plaintiff would have to show that the

defendants acted intentionally to manipulate the

shape of the district in order to pack or crack his

group.” Id. at 350.

11

Note that this approach arguably incorporates the

“partisan intent plus partisan effect” standards

developed by the district courts in the

gerrymandering cases now before the Court. Indeed,

it can be simply adjusted to fully incorporate those

standards. But what it adds is essential. The

technique of partisan gerrymandering consists of

“placing” partisans in, and excluding them from,

various districts, in an effort to manipulate the

political balance of power in those districts. Because

partisans do not choose where to live with an eye

towards assisting those who draw partisan district

lines, those lines must be distorted to accomplish the

desired partisan mix. Justice Souter was right to

insist that plaintiffs must show that mapmakers paid

“little or no heed” to “traditional districting

principles” including “contiguity, compactness,

respect for political subdivisions, and conformity with

geographic features like rivers and mountains.” Id.

at 347–48 (citations omitted). He also was right that

this “can be shown straightforwardly.” Compactness

can be measured by any number of simple

mathematical measures.

See, e.g., Petitioners’

Jurisdictional Statement at 26-30, Parrot v. Lamone,

No. 16-588, appeal dismissed, 137 S. Ct. 654 (2017).

Conformity with natural features is readily apparent.

Violations of political boundaries – for example, the

number of times these lines are crossed – can simply

be counted.

A standard that considers traditional districting

criteria is rendered judicially manageable. The flood

of gerrymandering cases that will follow any decision

by the Court declaring a standard will be restricted to

12

those where gerrymandering was actually practiced.

The standards enunciated by the district courts here

and in Gill focus on whether the partisan mapmakers

intended partisan gain, and whether electoral results

skewed in their favor. But every partisan intends

partisan gain; and political fortunes are as

unpredictable, ephemeral, and changeable as

economics fortunes or public approbation. Focusing

on traditional districting criteria will ensure that the

cases that are brought will be those where partisans

did not just intend partisan gain, but where they

achieved partisan gain by means of the techniques

and

practices

associated

with

extreme

gerrymandering.

13

CONCLUSION

For the foregoing reasons, amici Judicial Watch,

Inc. and Allied Educational Foundation respectfully

submit that any standard adjudicating impermissible

partisan

gerrymandering

must

include

a

consideration of traditional districting principles in

its analysis. Neither the standard in this case nor

that proposed in Gill satisfies these criteria.

Respectfully submitted,

T. Russell Nobile

WISE CARTER CHILD &

CARAWAY

2510 14th Avenue,

Suite 1125

Gulfport, MS 39501

(228) 867-7141

trn@wisecarter.com

Robert D. Popper

Counsel of Record

Chris Fedeli

JUDICIAL WATCH, INC.

425 Third Street SW

Washington, DC 20024

(202) 646-5172

rpopper@judicialwatch.org

Counsel for Amici Curiae

January 29, 2018