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

Supreme Court briefJan 29, 2018

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No. 17-333

IN THE

Supreme Court of the United States

————

O. JOHN BENISEK, EDMUND CUEMAN,

JEREMIAH DEWOLF, CHARLES W. EYLER, JR.,

KAT O’CONNOR, ALONNIE L. ROPP,

and SHARON STRINE,

Appellants,

LINDA H. LAMONE, State Administrator of Elections,

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

Maryland State Board of Elections,

Appellees.

————

On Appeal from the

United States District Court

for the District of Maryland

————

BRIEF OF PROFESSOR MICHAEL KANG AS

AMICUS CURIAE IN SUPPORT OF APPELLANTS

————

DANIEL F. KOLB

Counsel of Record

RUSSELL M. ANELLO

EDITH BEERDSEN

REAGAN T. LYNCH

ELIZABETH A. TIPPETT

DAVIS POLK & WARDWELL LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

daniel.kolb@davispolk.com

Counsel for Amicus Curiae

January 29, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

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

iii

INTEREST OF THE AMICUS CURIAE ............

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

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

I. PURSUIT OF PARTISAN ADVANTAGE

CANNOT BE A LEGITIMATE BASIS

FOR REDISTRICTING ............................

A. This Court has not accepted partisan

advantage as a legitimate basis for

redistricting .........................................

B. Identifying partisan advantage as an

illegitimate basis for redistricting

would address the concerns expressed

in Vieth .................................................

II. REDISTRICTING TO ACHIEVE A PARTISAN ADVANTAGE IS INCONSISTENT

WITH THE LONG-RECOGNIZED CONSTITUTIONAL NORM AGAINST GOVERNMENT PARTISANSHIP AS A LEGITIMATE GOVERNMENT ACTIVITY ........

A. The Court’s First Amendment decisions support the norm that government action for partisan advantage is

illegitimate ...........................................

B. The Court’s Fourteenth Amendment

decisions support the norm that

government action for partisan

advantage is illegitimate .....................

(i)

TABLE OF CONTENTS—Continued

Page

C. The Court’s Elections Clause decisions support the norm that government action for partisan advantage is

illegitimate ...........................................

III. REQUIRING THE GOVERNMENT TO

ESTABLISH THAT THE PARTISAN

EFFECTS OF REDISTRICTING WERE

THE INCIDENTAL RESULT OF ITS

PURSUIT OF LEGITIMATE STATE

INTERESTS WOULD PROVIDE A

CLEAR AND ADMINISTRABLE STANDARD AND A MEANINGFUL CHECK

ON ILLEGITIMATE PARTISAN GERRYMANDERING ...........................................

A. A constitutional standard based on a

rejection of partisan advantage would

provide a meaningful and low-burden

check on the redistricting process.......

B. Requiring the government to ground

its decisions in a legitimate purpose

would provide essential support for

well-established constitutional norms ...

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Ariz. State Legis. v. Ariz. Indep.

Redistricting Comm’n,

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

3, 5

Bandemer v. Davis,

603 F. Supp. 1479 (S.D. Ind. 1984),

rev’d, 478 U.S. 109 (1986) .........................

Benisek v. Lamone,

JKB-13-3233 (D. Md. Aug. 24, 2017) .......

Brown v. Thomson,

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

Bush v. Gore,

531 U.S. 98 (2000) .....................................

Common Cause v. Rucho,

1:16-CV-1026 (M.D.N.C. Jan. 9,

2018) .............................................. 11, 12, 19, 23

Cook v. Gralike,

531 U.S. 510 (2001) ................................... 2, 18

Cox v. Larios,

542 U.S. 947 (2004) ........................... 3, 5, 17, 22

Davis v. Bandemer,

478 U.S. 109 (1986) ................................... 6, 21

Elrod v. Burns,

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

Gaffney v. Cummings,

412 U.S. 735 (1973) ...................................

Gill v. Whitford,

No. 16-1161 (argued Oct. 3, 2017) ............

TABLE OF AUTHORITIES—Continued

Page(s)

Harris v. Ariz. Indep. Redistricting Comm’n,

136 S. Ct. 1301 (2016) ..............................passim

Hulme v. Madison County,

188 F. Supp. 2d 1041 (S.D. Ill. 2001) .......

Karcher v. Daggett,

462 U.S. 725 (1983) ...................................

Kusper v. Pontikes,

414 U.S. 51 (1973) ..................................... 18, 19

Larios v. Cox,

300 F. Supp. 2d 1320 (N.D. Ga. 2004)......

League of United Latin Am. Citizens v. Perry,

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

Miller v. Johnson,

515 U.S. 900 (1995) ...................................

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ..................................

Obama For Am. v. Husted,

888 F. Supp. 2d 897 (S.D. Ohio 2012) ......

Romer v. Evans,

517 U.S. 620 (1996) ...................................

Shapiro v. McManus,

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

Shapiro v. McManus,

203 F. Supp. 3d 579 (D. Md. 2016) ........... 12, 14

Shaw v. Reno,

509 U.S. 630 (1993) ................................... 9, 25

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Dep’t of Agric. v. Moreno,

413 U.S. 528 (1973) .................................. 15, 21

U.S. Term Limits v. Thornton,

514 U.S. 779 (1995) ................................... 18, 19

Vieth v. Jubelirer,

541 U.S. 267 (2004) ..................................passim

Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ...................................

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ...................................

Washington v. Davis,

426 U.S. 229 (1976) ...................................

Whitford v. Gill,

218 F. Supp. 3d 837 (W.D. Wis. 2016) ..... 22, 23

STATUTES, RULES, AND REGULATIONS

U.S. Const. amend. I ...................................passim

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

U.S. Const. amend. XIV, § 1 .................. 11, 15, 16

U.S. Const. art. I, § 4 ...................................passim

OTHER AUTHORITIES

Eric McGhee, Measuring Partisan Bias in

Single-Member District Electoral Systems,

39 LEGIS. STUD. Q. 55 (2014).....................

TABLE OF AUTHORITIES—Continued

Page(s)

John Hoeffel, Six Incumbents Are a

Week Away from Easy Election, WINSTON

SALEM J. (Jan. 27, 1988) ...........................

Mackenzie Weinger, Pa Pol: Voter ID Helps

GOP Win State, POLITICO (June 25, 2012),

https://www.politico.com/story/2012/06/papol-voter-id-helps-gop-win-state-077811 .....

Michael Kang, Gerrymandering and the

Norm Against Government Partisanship,

116 MICH. L. REV. 351 (2017) ...................

Richard Pildes, The Constitutionalization

of Democratic Politics, 118 HARV. L. REV.

29 (2004) ....................................................

INTEREST OF THE AMICUS CURIAE1

Amicus curiae Michael S. Kang is the Thomas

Simmons Professor at Emory University School of Law

and a nationally recognized expert on redistricting

and election law.2 Professor Kang holds a J.D.

from the University of Chicago School of Law and a

Ph.D. in Government from Harvard University. The

American Academy of Law Schools recognized Professor

Kang’s recent article, Gerrymandering and the Norm

Against Government Partisanship, 116 MICH. L. REV.

351 (2017), as its Best Election Law Paper of 2017. In

that article, Professor Kang argues that legislative

redistricting, like all lawmaking, must be supported

by a legitimate government purpose and that to have

a rational basis, partisan effects of redistricting must

result from the government’s pursuit of legitimate

objectives. If redistricting effects are not so justified

but instead are the result of the government’s pursuit

of partisan advantage, Professor Kang submits that

the state’s map should be rejected as unconstitutional. Such an approach to the constitutionality of

redistricting would be consistent with well-developed

constitutional norms that are embedded in the Court’s

decisions. See, e.g., Harris v. Ariz. Indep. Redistricting

Comm’n, 136 S. Ct. 1301, 1310 (2016) (strongly suggesting that partisan advantage is an illegitimate

state interest in redistricting under the Fourteenth

Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

other than amicus and his counsel made a monetary contribution

to its preparation or submission. The parties’ letters consenting

to the filing of amicus curiae briefs have been filed with the

Clerk’s office.

The views expressed herein are Professor Kang’s alone and

do not represent the views of Emory University School of Law.

Amendment’s one person, one vote doctrine); Cook v.

Gralike, 531 U.S. 510, 524–27 (2001) (rejecting a ballot

provision “plainly designed to favor [certain] candidates” as a legitimate state interest under the Elections

Clause); Elrod v. Burns, 427 U.S. 347, 356 (1976)

(holding that partisan advantage is not a legitimate

state interest in government hiring decisions under

the First Amendment).

Professor Kang takes an interest in this case

because he believes that consideration of his thesis

would assist the Court in resolving the issues presented here and in Gill v. Whitford, No. 16-1161

(argued Oct. 3, 2017).

SUMMARY OF ARGUMENT

In keeping with this Court’s prior decisions under

the First Amendment, Fourteenth Amendment, and

the Elections Clause, U.S. Const. Art. I, § 4, a

redistricting plan should be rejected as unconstitutional to the extent that its purpose is to achieve

partisan advantage. As Justices Stevens and Breyer

have explained, “any decision to redraw district

boundaries—like any other state action that affects

the electoral process—must, at the very least, serve

some legitimate governmental purpose” beyond “a

purely partisan desire.” League of United Latin

American Citizens v. Perry (LULAC), 548 U.S. 399,

448 (2006) (Stevens, J., concurring in part and dissenting in part).

By focusing primarily on whether a redistricting

plan serves legitimate state interests—rather than on

the magnitude of its partisan effects—courts would

assess redistricting plans in a framework that is

“clear, manageable, and politically neutral,” and consistent with the broader body of constitutional law,

including this Court’s one person, one vote doctrine.

Vieth v. Jubelirer, 541 U.S. 267, 307–08 (2004)

(Kennedy, J., concurring in the judgment). Within the

scope of the one person, one vote doctrine, the Court

has recognized that if population deviations across

districts advantage one party over another and cannot

be explained by a legitimate state purpose, then the

redistricting map is unconstitutional. See Cox v.

Larios, 542 U.S. 947, 949 (2004) (Stevens, J., joined by

Breyer, J., concurring). That is true even where the

deviations at issue are not large. Id. By contrast,

when the population deviations’ partisan effects can

be explained as the necessary consequence of the

government’s pursuit of legitimate state interests, like

compliance with the Voting Rights Act, the courts

have ruled that the redistricting map and its partisan

effects are constitutionally permissible. Harris v. Ariz.

Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1309

(2016). Amicus urges that the partisan effects from

an allegedly partisan gerrymander should likewise

be justified by reference to the pursuit of legitimate

government interests in redistricting, as opposed to

bare partisanship.

Practical acknowledgement that a political party

might consider partisan advantage in drawing a map

should not mean that seeking partisan advantage is a

legitimate basis for drawing the map. “[T]he drawing

of legislative district lines to subordinate adherents

of one political party and entrench a rival party in

power,” Ariz. State Leg. v. Ariz. Indep. Redistricting

Comm’n, 135 S. Ct. 2652, 2658 (2015), is directly

at odds with the broad constitutional norm against

government partisanship that appears throughout

law-of-democracy jurisprudence.

The purpose-based standard amicus advocates

rejects the assumption advanced by Justice Scalia that

a significant measure of partisanship must be tolerated in the redistricting process so long as it is not

“excessive.” Vieth, 541 U.S. at 293 (plurality opinion).

In seeking to apply that standard in redistricting

cases, courts have struggled to find an acceptable limit

for partisanship in drawing district lines, and the

effort has so far failed to yield a “clear, manageable,

and politically neutral” standard for assessing the

constitutionality of a redistricting plan that entrenches

one political party at the expense of another. Id. at

307–08 (Kennedy, J., concurring in the judgment).

Seeking to establish an objective constitutional standard based on an assessment of whether the partisan

effect of a particular redistricting plan is “excessive,”

and only then unconstitutional, has understandably

vexed the courts because it tolerates to a significant

degree illegitimate government support for partisan

advantage.

As illustrated by the one person, one vote cases, the

excessiveness of a redistricting plan’s partisan effects

should be relevant to the constitutional inquiry, but

should not be the determinative touchstone for constitutionality.

ARGUMENT

I. PURSUIT OF PARTISAN ADVANTAGE

CANNOT BE A LEGITIMATE BASIS FOR

REDISTRICTING.

This Court’s redistricting case law rejects the

pursuit of partisan advantage as an illegitimate basis

for lawmaking. Because it is not legitimate government activity, the pursuit of partisan advantage—

“subordinat[ing] adherents of one political party and

entrench[ing] a rival party in power,” Ariz. State Leg.,

135 S. Ct. at 2658—cannot be a rational basis for

redistricting.

In redistricting, legislatures may

consider legitimate political factors, such as respect for

traditional political boundaries and preservation of

communities of interest; but, to the extent that the

drawing of a district map can only be explained by the

pursuit of partisan advantage, it is inconsistent with

the protections of the First and Fourteenth Amendments and with courts’ decisions under the Elections

Clause, U.S. Const. Art. I, § 4.

In his plurality opinion in Vieth v. Jubelirer, 541

U.S. 267 (2004), Justice Scalia observed that, in the

government’s pursuit of legitimate lawmaking interests,

the government is entitled to weigh political considerations in redistricting, including potential partisan

implications. That observation is not—and should not

be allowed to become—a sanction for government

officials’ actual pursuit of electoral advantage for one

party at the expense of the other. Justice Scalia could

cite no precedent in his partisan gerrymandering

opinions for the assertion that partisan advantage “is

a traditional criterion, and a constitutional one, so

long as it does not go too far.” Cox v. Larios, 542 U.S.

947, 952 (2004) (Scalia, J., dissenting). As Justice

Stevens countered in Vieth, before Vieth, “there ha[d]

not been the slightest intimation in any opinion

written by any Member of [the] Court that a naked

purpose to disadvantage a political minority would

provide a rational basis for drawing a district line.”

Vieth, 541 U.S. at 336–37 (Stevens, J., dissenting).

Amicus submits that by insisting that there be a

legitimate government interest for redistricting, the

Court would provide a “clear, manageable, and politically neutral” standard. Id. at 307–08 (Kennedy, J.,

concurring in the judgment). Recent lower court

decisions in this and other cases demonstrate the

manageability of such a purpose-focused approach to

the review of partisan gerrymandering. Those decisions have tracked Justice Kennedy’s opinion in Vieth

and have inquired “not whether political classifications were used” or how excessive the partisan advantage is, but instead whether the government acted

impermissibly with the “purpose . . . of imposing burdens on a disfavored party and its voters.” Id. at 315

(Kennedy, J., concurring in judgment).

A. This Court has not accepted partisan

advantage as a legitimate basis for

redistricting.

As the Court has struggled to articulate a standard

for addressing the constitutionality of partisan gerrymandering, Justices have disagreed about whether

only “excessive” gerrymanders violate the Constitution,

or whether any redistricting for the purpose of attaining partisan advantage is impermissible. The latter

position is consistent with the Court’s decisions in

directly related areas. While the Court has long recognized that legislatures are partisan bodies, the Court

has not held that the government may rely on pure

partisanship as a legitimate basis for its decisions,

regardless of the magnitude of the partisan effect. See,

e.g., Elrod v. Burns, 427 U.S. 347, 356 (1976) (holding

that partisan advantage is not a legitimate state

interest in government hiring decisions under the

First Amendment).

This Court first addressed the constitutionality of

partisan gerrymandering in Davis v. Bandemer, 478

U.S. 109 (1986), when it accepted that the issue was

justiciable but articulated an effects-focused standard

that so far has not been met. In Bandemer, the Court

considered an equal-protection challenge to the 1981

decennial redistricting of the Indiana state legislature.

Despite the district court’s finding that the Republicanmajority legislature drew districts with “simply no

conceivable justification” other than “protecting its

incumbents and creating every possible ‘safe’ Republican

district possible,” Bandemer v. Davis, 603 F. Supp.

1479, 1487–88 (S.D. Ind. 1984), rev’d, 478 U.S. 109

(1986), this Court held that in order to succeed, plaintiffs needed to prove discriminatory effect by showing

that “the electoral system is arranged in a manner

that will consistently degrade a voter’s or a group of

voters’ influence on the political process as a whole.”

Bandemer, 478 U.S. at 132 (plurality opinion). The

panel below found both a partisan purpose and effect,

but the Court declined to find a constitutional violation, because the effects did not meet a threshold for

discriminatory vote dilution. Id. at 143. The result

was to preserve a map and voting processes that

avowedly served the partisan purpose of keeping a

political party in control, an intentional burdening of

voting rights.

Returning to the question eighteen years later, in

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

again held that partisan gerrymandering cases were

justiciable, but rejected the Bandemer discriminatory

effects standard without articulating a new standard.

In Vieth, the fractured Court put forward three distinct

constitutional rationales and no controlling legal standard. Justice Scalia, writing for a four-member minority

of the Court, opined that partisan gerrymandering

cases are nonjusticiable despite “the incompatibility of

severe partisan gerrymanders with democratic principles” and the recognition that “an excessive injection

of politics is unlawful” in legislative districting. Vieth,

541 U.S. at 292–93 (plurality opinion). Justice Stevens,

in his dissenting opinion, denied that “a naked purpose

to disadvantage a political minority would provide a

rational basis” for a redistricting plan. In his view, the

appropriate constitutional question was “whether the

legislature allowed partisan considerations to dominate and control the lines drawn, forsaking all neutral

principles.” Id. at 339 (Stevens, J., dissenting). Justice

Kennedy, in a concurring opinion, wrote that “[b]ecause

there are yet no agreed upon substantive principles

of fairness in districting, we have no basis on which

to define clear, manageable, and politically neutral

standards for identifying unconstitutional partisan

gerrymandering.” Id. at 307–08 (Kennedy, J., concurring in the judgment).

Justice Scalia’s plurality opinion, while not controlling, has nevertheless guided subsequent discourse on

the question of whether partisan motivations could

constitute a lawful basis for a redistricting plan. He

wrote that because legislative redistricting was contemplated in the Constitution, see U.S. Const. Art. I,

§ 4 (“The Times, Places and Manner of holding Elections

for Senators and Representatives, shall be prescribed

in each State by the Legislature thereof”), and because

partisan redistricting had been common in American

politics since the colonial period, “partisan districting

is a lawful and common practice.” Vieth, 541 U.S. at

286 (plurality opinion). In Justice Scalia’s view, although

“excessive” partisanship was unlawful, the question

was not justiciable because it was impossible to craft a

workable standard to assess “[h]ow much political

motivation and effect is too much.” Id. at 297 (plurality opinion).

Importantly, Justice Scalia’s plurality opinion did

not identify any prior case law expressing constitutional approval for purely partisan motivations as

legitimate reasons for the drawing of district lines.

Rather he cited cases which recognized that as a practical matter partisan considerations were commonly

considered in redistricting, and which passed no judgment on whether such considerations, absent additional nonpartisan considerations, could be a legitimate government interest or a lawful basis for government action. See id. at 285–86 (plurality opinion) (citing

Miller v. Johnson, 515 U.S. 900, 914 (1995) (“[R]edistricting in most cases will implicate a political calculus

in which various interests compete for recognition.”);

Shaw v. Reno, 509 U.S. 630, 662 (1993) (White, J.,

dissenting) (“[D]istricting inevitably is the expression

of interest group politics.”); Gaffney v. Cummings,

412 U.S. 735, 753 (1973) (“The reality is that districting inevitably has and is intended to have substantial

political consequences.”)). Nevertheless, Justice Scalia

cited those cases as support for his conclusion that the

objective of seeking partisan advantage could be a

legitimate basis for a redistricting plan, so long as the

partisan purpose and effect were not “excessive.”

In Vieth, Justice Kennedy accepted that the excessiveness of a partisan gerrymander could be part of an

undefined constitutional standard and held open the

possibility that criteria for a “clear, manageable, and

politically neutral” constitutional standard could be

developed in the future. Id. at 307–08 (Kennedy, J.,

concurring in the judgment). But he also cautioned

against “adopting a standard that turned on whether

the partisan interests in the redistricting process were

excessive,” because “[e]xcessiveness is not easily

determined.” Id. at 316. He suggested that the proper

inquiry might instead be purpose-directed, assessing

under the First Amendment whether “political classifications were used to burden a group’s representational

rights.” Id. at 315. He observed that “[i]f a State

passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party

X’s rights to fair and effective representation . . .’

we would surely conclude the Constitution had been

violated.” Id. at 312.

Although Justice Kennedy articulated a potential

purpose-based First Amendment inquiry in Vieth—

which would prohibit partisan intent to burden a

particular class of citizens through redistricting—in

LULAC, he did not accept appellants’ assertion that

the Texas redistricting plan at issue was unconstitutional because its sole purpose was to seek partisan

advantage. LULAC, 548 U.S. at 417. That plan was

left to avowedly burden voting rights.

B. Identifying partisan advantage as an

illegitimate basis for redistricting would

address the concerns expressed in

Vieth.

Dissents by Justice Stevens and Justice Breyer in

Vieth and LULAC articulate a standard that addresses

the concerns originally framed by Justice Kennedy in

Vieth. That standard, which asks “whether the legislature allowed partisan considerations to dominate

and control the lines drawn, forsaking all neutral

principles,” Vieth, 541 U.S. at 336–39 (Stevens, J.,

dissenting) is “clear, manageable, and politically neutral”

and does not turn “on whether the partisan interests

in the redistricting process were excessive.” Id. at 307–

08, 316 (Kennedy, J., concurring in the judgment).

Applying that same test in his dissent in LULAC,

Justice Stevens, joined in relevant part by Justice

Breyer, expressed the view that the redistricting’s

“sole purpose of advantaging Republicans and disadvantaging Democrats” meant that the state had failed

its “constitutional requirement that state action must

be supported by a legitimate state interest.” LULAC,

548 U.S. at 462–63 (Stevens, J., concurring in part and

dissenting in part). They cited the overwhelming

evidence of purely partisan motivations for the 2003

Texas redistricting plan in concluding that “it is

perfectly clear that judicially manageable standards

enable us to decide the merits of a statewide challenge

to a political gerrymander.” Id. at 447 (Stevens, J.,

concurring in part and dissenting in part).

Building on Justice Stevens’s and Justice Breyer’s

dissents, two recent three-judge district court panel

decisions, the decision below and the decision of the

panel in Common Cause v. Rucho, 1:16-CV-1026

(M.D.N.C. Jan. 9, 2018), have held that the core

constitutional inquiry in partisan gerrymandering

cases should be whether plaintiffs can demonstrate

that the illegitimate purpose of partisan advantage—

as opposed to legitimate state interests—motivated

the redistricting plan at issue. In Common Cause, the

panel held that the 2016 North Carolina legislature’s

redistricting plan violated the Equal Protection Clause,

as well as the First Amendment and the Election

Clause, U.S. Const. Art. I, § 4, because the plan “was

enacted with discriminatory intent and resulted in

discriminatory effects” and “its discriminatory effects

are [not] attributable to the state’s political geography

or another legitimate redistricting objective.” 1:16CV-1026, at 81. The panel’s analysis focused primarily on partisan purpose but also required a showing of

discriminatory effect and causation. Plaintiffs were

not required to meet a heightened standard of excessive discriminatory effect in order to meet their burden

of proof under any of the three constitutional claims

put forward. Id.

Similarly, in this case, the three-judge district court

panel below concluded that a cognizable claim that

a redistricting plan violated the First Amendment

required proof of “specific intent to impose a burden on

[a class of individuals] because of how they voted or

the political party with which they were affiliated”;

“injury . . . that the challenged map diluted the votes

of the targeted citizens to such a degree that it resulted

in a tangible and concrete adverse impact”; and

“causation—that, absent the mapmakers’ intent to

burden a particular group of voters by reason of their

views, the concrete adverse impact would not have

occurred.” See Shapiro v. McManus, 203 F. Supp. 3d

579, 596–97 (D. Md. 2016). Again, under the test

articulated by the court, if partisan impact was demonstrated plaintiffs would need to show only that the

effect was “tangible and concrete,” not extreme. Id.

II. REDISTRICTING TO ACHIEVE A PARTISAN ADVANTAGE IS INCONSISTENT WITH

THE LONG-RECOGNIZED CONSTITUTIONAL NORM AGAINST GOVERNMENT

PARTISANSHIP AS A LEGITIMATE

GOVERNMENT ACTIVITY.

Allowing redistricting for the purpose of achieving

partisan advantage is squarely at odds with the

Court’s prior holdings in related areas of constitutional law that partisanship cannot be a legitimate

government purpose. As reflected in this Court’s First

Amendment, Fourteenth Amendment, and Elections

Clause jurisprudence, constitutionality should not

turn primarily on the degree of harm resulting from

partisanship, but rather upon the fact that partisan

advantage was the basis for a map’s design. These

cases illustrate an overarching constitutional norm

against government action to seek partisan advantage

as a legitimate government activity.

A. The Court’s First Amendment decisions

support the norm that government

action for partisan advantage is

illegitimate.

The First Amendment norm rejecting the legitimacy

of government partisan purpose is long-standing, and

redistricting for the purpose of partisan advantage

should be understood to violate that norm. “[P]olitical

belief and association constitute the core of those

activities protected by the First Amendment.” Elrod

v. Burns, 427 U.S. 347, 356 (1976); see also New York

Times Co. v. Sullivan, 376 U.S. 254, 270–71 (1964); W.

Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943). When the government designs an electoral

map for the purpose of attaining partisan advantage,

the government is intentionally burdening the core

First Amendment rights of citizens with competing

political beliefs and associations. Such action does not

further legitimate state interests.

In Vieth, Justice Kennedy explained that allegations

of partisan gerrymandering “involve the First Amendment interest of not burdening or penalizing citizens

because of their participation in the electoral process,

their voting history, their association with a political

party, or their expression of political views.” Vieth,

541 U.S. at 314 (Kennedy, J., concurring in the judgment) (citing Elrod, 427 U.S. 347). He explained that

a First Amendment inquiry would focus on “whether

political classifications were used to burden a group’s

representational rights.” Id. at 315 (Kennedy, J.,

concurring in the judgment). In his dissent in Vieth,

Justice Stevens also suggested a First Amendment

analysis: “‘[P]olitical belief and association constitute

the core of those activities protected by the First

Amendment’ . . . . It follows that political affiliation is

not an appropriate standard for excluding voters from

a congressional district.” Id. at 324–25 (Stevens, J.,

dissenting) (quoting Elrod, 427 U.S. at 356).

More recently, in Shapiro v. McManus, an earlier

decision in this case, this Court reversed the threejudge district court’s dismissal of the plaintiffs’ First

Amendment partisan gerrymandering claim because

the Court found that the claim was not “‘constitutionally insubstantial.’” 136 S. Ct. 450, 456 (2015)

(explaining that Justice Kennedy in Vieth had “surmised

that if ‘a State did impose burdens and restrictions on

groups or persons by reason of their views, there would

likely be a First Amendment violation’” and that “[w]here

it is alleged that a gerrymander had the purpose and

effect of imposing burdens on a disfavored party and

its voters, the First Amendment may offer a sounder

and more prudential basis for intervention . . . .”

(quoting Vieth, 541 U.S. at 315)). The panel below

went on appropriately to adopt a standard that

reflected the long-standing First Amendment norm

prohibiting a partisan purpose for state action absent

a legitimate state interest. Benisek v. Lamone, 266 F.

Supp. 3d 799, 801–02 (D. Md. 2017) (citing Shapiro,

203 F. Supp. 3d 579, 596–97 (D. Md. 2016)).

These district court opinions are consistent with the

long-standing norm against government action for

partisan advantage under the First Amendment, as

adopted in the Court’s government patronage cases.

Those decisions uniformly reject government employment decisions made because of partisanship, which

the Court found to be an illegitimate government

purpose, rather than on legitimate hiring criteria. The

Court explained that by conditioning employment on

party affiliation, patronage burdens political belief

under the First Amendment and, more broadly, harms

the democratic process. Elrod, 427 U.S. at 355–56.

The Court stressed that partisan patronage is not

unconstitutional because of the degree of partisanship,

but because the employment decision is based on

partisan purpose.

B. The Court’s Fourteenth Amendment

decisions support the norm that government action for partisan advantage is

illegitimate.

The Court’s decisions under the Fourteenth Amendment likewise adopt the norm against government

action to create partisan advantage. The Equal

Protection Clause prohibits a state from “deny[ing] to

any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1. To show a

violation of the Equal Protection Clause, plaintiffs

must prove that there was both a discriminatory

purpose and effect, and if they do so, the burden shifts

to the government to show that the discrimination

was justified by a legitimate state interest. See

Washington v. Davis, 426 U.S. 229, 239–41 (1976)

(describing the burden shifting framework under the

Equal Protection Clause); see also Brown v. Thomson,

462 U.S. 835, 842–43 (1983) (describing the same

in the context of the Equal Protection Clause’s one

person, one vote doctrine). Intent to advantage or

to disadvantage a political party cannot be such

a legitimate state interest. See U.S. Dep’t of Agric.

v. Moreno, 413 U.S. 528, 534–35 (1973) (“[B]are congressional desire to harm a politically unpopular

group cannot constitute a legitimate governmental

interest.”).

Within its equal protection jurisprudence, this

Court’s one person, one vote doctrine prohibits even

modest population deviations between legislative

districts when those deviations are based solely on the

illegitimate purpose of providing partisan advantage.

To succeed under the one person, one vote doctrine,

plaintiffs must show that it is more probable than not

that a population deviation of less than ten percent is

predominantly based on “illegitimate reapportionment factors” rather than “legitimate considerations.”

Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct.

1301, 1304, 1307 (2016). Even if the effect of the

redistricting is relatively minor, it violates the Equal

Protection Clause if it “serve[s] no purpose other than

to favor one segment—whether racial, ethnic, religious,

economic or political—that may occupy a position of

strength . . . or to disadvantage a politically weak

segment.” Karcher v. Daggett, 462 U.S. 725, 748

(1983) (Stevens, J., concurring).

Decisions in the one person, one vote area support

the norm against government action for partisan

advantage. The Court applied the one person, one vote

doctrine to a partisan gerrymandering case in Harris

v. Arizona Independent Redistricting Commission, in

a decision that strongly suggests that partisanship

cannot be a legitimate consideration in redistricting.

In Harris, the Court held that an Arizona Commission’s redistricting plan did not violate the Equal

Protection Clause because the population deviations

it generated were based on a legitimate purpose—a

good-faith effort to comply with the Voting Rights

Act—rather than by a desire to seek partisan

advantage. 136 S. Ct. at 1309. Justice Breyer, writing

for the Court, reserved the question of whether “partisanship is an illegitimate redistricting factor” but

stated that “[n]o legitimate purposes could explain”

the population deviations in redistricting in a previous

case, Cox v. Larios, 542 U.S. 947 (2004), where the

Court had found the map drawing was motivated by a

desire to create partisan advantage. Id. at 1310. The

logic of Harris strongly suggests that the Court

considered such a partisan purpose to be illegitimate.

In Larios, Georgia Democrats had redistricted the

state with “two expressly enumerated objectives: the

protection of rural Georgia and inner-city Atlanta

against a relative decline in their populations . . . and

the protection of Democratic incumbents.” 300 F.

Supp. 2d 1320, 1325 (N.D. Ga. 2004). A three-judge

district court panel held that the partisan gerrymander violated the one person, one vote doctrine and that

in districting, “each population deviation requires at

least some plausible and consistently applied state

interest to justify it . . . and the defendant’s two proffered justifications are plainly impermissible.” Larios,

300 F. Supp. 2d at 1352–53 (emphasis in original).

This Court affirmed, holding that “the drafters’ desire

to give an electoral advantage to certain regions of the

State and to certain incumbents . . . did not justify the

conceded deviations from the principle of one person,

one vote.” Larios, 542 U.S. at 949. This Court made

clear that the one person, one vote violation was

triggered not by the magnitude of the population

deviation, but rather by partisan-motivated redistricting with no legitimate purpose. See id. at 949–51.

C. The Court’s Elections Clause decisions

support the norm that government action

for partisan advantage is illegitimate.

The constitutional norm against partisan government action also drives the Court’s decisions related to

the administration of elections. The Elections Clause,

U.S. Const. Art. I, § 4, delegates authority to states to

establish procedures for congressional elections. The

Court has made it clear that this clause is only a

delegation of authority to adopt procedural regulations for congressional elections; it does not permit

states to favor or to disadvantage particular candidates. U.S. Term Limits, Inc. v. Thornton, 514 U.S.

779, 835 (1995). States are not permitted to dictate

electoral outcomes based on candidates’ political

positions because such action would constitute an

illegitimate purpose and would be inconsistent with

the constitutional norm against government action in

support of partisan advantage. See Cook v. Gralike,

531 U.S. 510, 526–27 (2001) (unanimous court);

Thornton, 514 U.S. at 833–34 (“[T]he Framers understood the Elections Clause as a grant of authority to

issue procedural regulations, and not as a source of

power to dictate electoral outcomes, to favor or

disfavor a class of candidates, or to evade important

constitutional restraints.”).

In Cook v. Gralike, the Court overturned a Missouri

constitutional amendment requiring each candidate’s

position on congressional term limits to be printed on

the ballot because the amendment had the purpose

of favoring certain candidates over others. 531 U.S.

at 524. The Court found that the law violated the

Elections Clause because it sought to “dictate electoral

outcomes” based on candidates’ positions. Id. at 524–

27; see also Kusper v. Pontikes, 414 U.S. 51, 57 (1973)

(“[A]dministration of the electoral process is a matter

that the Constitution largely entrusts to the States.

But . . . States may not infringe upon basic constitutional protections.”).

Similarly, courts have emphasized the illegitimacy

of government election administration with a partisan

purpose in striking down voter identification laws and

early voting restrictions on nonracial bias grounds. In

Obama for America v. Husted, the Sixth Circuit

affirmed a district court’s injunction of an Ohio law

limiting early voting because the law discriminated

between classes of voters in violation of the Fourteenth

Amendment. The court in Husted drew upon this

Court’s holding in Bush v. Gore that “the State may

not, by later arbitrary and disparate treatment, value

one person’s vote over that of another.” 888 F. Supp.

2d 897, 910 (S.D. Ohio 2012) (quoting Bush v. Gore,

531 U.S. 98, 104–05 (2000)).

Consistent with the constitutional norm established

in these cases, the panel in Common Cause held that

redistricting of congressional districts for partisan

advantage violates the Elections Clause. The panel

concluded that the North Carolina 2016 redistricting

map “disfavor[ed] the interests of supporters of a particular candidate or party in drawing congressional

districts,” showed bias toward a specific political

party, and was an “impermissible effort to ‘dictate

electoral outcomes’ and ‘disfavor a class of candidates.’” 1:16-CV-1026, at 178 (quoting Thornton, 514

U.S. at 833–34). The panel held that the redistricting

“violates the Elections Clause by ‘infring[ing] upon

basic constitutional protections.’” Common Cause,

1:16-CV-1026, at 178 (quoting Kusper v. Pontikes, 414

U.S. at 56–57).

III. REQUIRING THE GOVERNMENT TO

ESTABLISH THAT THE PARTISAN

EFFECTS OF REDISTRICTING WERE

THE INCIDENTAL RESULT OF ITS PURSUIT OF LEGITIMATE STATE INTERESTS

WOULD PROVIDE A CLEAR AND

ADMINISTRABLE STANDARD AND A

MEANINGFUL CHECK ON ILLEGITIMATE PARTISAN GERRYMANDERING.

An electoral map with partisan effects that can

be explained only by the intent to achieve partisan

advantage violates the Constitution. However, a

map with partisan effects that can be explained as

the necessary consequence of the government’s

pursuit of legitimate state interests—such as respect

for traditional political boundaries and subdivisions,

compactness and contiguity, and the preservation of

communities of interest—must be upheld. Focusing

the constitutional inquiry on the requirement of a

legitimate state interest in redistricting, rather than

on the excessiveness of the partisan effects, would

render unnecessary the need to define excessiveness of

partisan effect that has proved so vexing for the courts

since Vieth.

A. A constitutional standard based on a

rejection of partisan advantage would

provide a meaningful and low-burden

check on the redistricting process.

Under the proposed standard, the government would

need to demonstrate that the partisan effects of a

redistricting plan were the incidental result of the

government’s pursuit of legitimate state interests rather

than an effort to provide an advantage to one political

party at the expense of another. A redistricting plan

would be upheld if the government successfully showed

that the partisan effects of redistricting were indirect

but necessary results of legitimate state interests. If

plaintiffs established both partisan intent and effects,

and the government could not explain the partisan

effects of its redistricting plan as the product of

legitimate state interests, a map would be struck down

as the unconstitutional result of lawmaking based on

the “naked purpose to disadvantage a political minority.” Vieth, 541 U.S. at 336–37 (Stevens, J., dissenting); cf. Romer v. Evans, 517 U.S. 620, 632–36 (1996)

(ruling that bare animus to disadvantage a group,

even outside a fundamental right or protected class,

does not qualify as a legitimate state interest); U.S.

Dep’t of Agric. v. Moreno, 413 U.S. 528, 534–35 (1973)

(concluding that equal protection “must at the very

least mean that a bare congressional desire to harm

a politically unpopular group cannot constitute a

legitimate governmental interest”).

Such a standard would be familiar. As highlighted

in Part II, supra, constitutional standards based on

partisan purpose already control in related areas of

law under the First Amendment, Fourteenth Amendment, and the Elections Clause. In considering a challenge to partisan redistricting under the one person,

one vote doctrine in Harris v. Arizona Independent

Redistricting Commission, the Court concluded that a

plaintiff must show that “it was more probable than

not that the use of illegitimate factors significantly

explained deviations from numerical equality.” 136

S. Ct. 1301, 1310 (2016). Similarly, prior to Vieth,

Davis v. Bandemer required courts to assess whether

a redistricting plan constituted “intentional discrimination against an identifiable political group.” 478 U.S.

109, 127 (1986). In addition, courts have long assessed

legislative purpose in the context of racial discrimination claims under the Fourteenth Amendment. See,

e.g., Village of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252 (1977) (holding a zoning ordinance

did not violate the Constitution because there was no

proof that “discriminatory purpose was a motivating

factor in the Village’s decision”). As evidenced by its

application in related contexts, the proposed standard

would be “clear, manageable, and politically neutral.”

Vieth, 541 U.S. at 307–08 (Kennedy, J., concurring in

the judgment).

A redistricting body might attempt to cloak an impermissible partisan purpose in a pretextual rationale.

Indeed Justice Scalia and others have expressed concern that the government will always offer a “neutral

explanation” for a partisan gerrymander. Id. at 300

(plurality opinion). Yet courts have shown themselves

adept at analyzing whether explanations are genuine

or pretextual. In egregious cases, like those presented

by the 2001 Georgia House of Representatives and

2002 Georgia Senate redistricting plans at issue in

Cox v. Larios, 542 U.S. 947 (2004), courts would have

no trouble in determining that the partisan effects of

the redistricting resulted from a government purpose

to advantage one political party. In Whitford v. Gill,

the district court found that it could distinguish

between the impermissible partisan purpose that predominated and the pretextual recitation of compactness

and contiguity that was facially consistent with the

final redistricting plan. 218 F. Supp. 3d 837, 891–96,

922–27 (W.D. Wis. 2016). In that case, although the

electoral districts were largely compact and contiguous, the court rejected the State of Wisconsin’s claim

that the redistricting plan could be justified in terms

of legitimate state interests because the redistricting

body had considered and intentionally rejected numerous alternative maps that achieved the same degree of

compactness and contiguity in favor of maps with

greater and more durable partisan effect. Id.

The necessary inquiry into illegitimate partisan

purpose also may be helpfully informed by empirical

measures of partisan effect such as the “efficiency gap”

metric put forward by Eric McGhee. See Eric McGhee,

Measuring Partisan Bias in Single-Member District

Electoral Systems, 39 LEGIS. STUD. Q. 55 (2014). As

recognized in Common Cause and Whitford, empirical

measures of partisan effect are probative as to the true

purpose of the redistricting body in implementing the

redistricting plan at issue. The more substantial the

partisan effect, the less likely it is that a redistricting

plan was motivated by a legitimate state interest.

In addition to empirical measures of a partisan

effect, other indicia of impermissible intent can be

helpful in identifying partisan purpose: the timing of

the redistricting effort (e.g., mid-decade versus constitutionally mandated decennial redistricting), the

deviation from prior procedural norms in the redistricting process, the proportion of same-party incumbents

forced to compete in the same district, the use of

partisan experts in drawing redistricting, the relative

partisan effect of proposed maps as compared to the

selected redistricting plan, and the contemporaneous

statements from individuals involved in the redistricting process as well as their subsequent testimony.

While pretextual explanations can be discredited,

under the Court’s current standards, many legislators

do not even bother with a pretext. Unworried about

judicial intervention against gerrymandering, members

of redistricting bodies have with increasing frequency

openly acknowledged that the motivation underlying

a redistricting plan was to entrench one political party

at the expense of another. See, e.g., LULAC, 548 U.S.

at 453 (“According to former Lieutenant Governor Bill

Ratliff, a highly regarded Republican member of the

State Senate, ‘political gain for the Republicans was

110% of the motivation for the Plan, . . . it was the

entire motivation.’”) (internal quotation mark omitted)

(Stevens, J., concurring in part and dissenting in part).

Legislators have not infrequently advanced a facially

neutral rationale, but then have spoken in more

candid terms that provide direct evidence of partisan

intent. For example, in the run-up to the 2012 presidential election, Pennsylvania House Republican

leader Mike Turzai asserted that Pennsylvania’s voteridentification law, which had purportedly been designed

to protect the integrity of the ballot from voter fraud,

was “gonna allow [Republican presidential nominee

Mitt] Romney to win the state of Pennsylvania, done.”

Mackenzie Weinger, Pa Pol: Voter ID Helps GOP Win

State, POLITICO (June 25, 2012), https://www.politico.

com/story/2012/06/pa-pol-voter-id-helps-gop-win-state077811 (quoting Rep. Turzai).

While a purpose-focused standard would provide a

meaningful check against partisan gerrymandering, it

would not exclude political bodies from their traditional role in redistricting. It would neither burden

political actors with a standard of conduct that would

be difficult to meet, nor pose a risk that all redistricting decisions would become subject to judicial challenge. As Justice Breyer explained in Vieth, “The use

of purely political boundary-drawing factors, even

where harmful to the members of one party, will often

nonetheless find justification in other desirable democratic ends.” 541 U.S. at 360 (Breyer, J., dissenting).

Under the proposed standard, an inquiry into legislative purpose will arise only when a plaintiff is able to

present evidence of a partisan bias in a redistricting

plan, and would lead to the overturning of a

redistricting plan only if a state is unable to put

forward a legitimate state interest explaining the

redistricting plan’s partisan effect. Just as the courts

are not flooded with one person, one vote cases, only a

small minority of redistricting plans are likely to raise

serious questions regarding their constitutionality

under a purpose-based standard.

B. Requiring the government to ground

its decisions in a legitimate purpose

would provide essential support for

well-established constitutional norms.

While such a standard might directly invalidate

only a relatively limited number of redistricting maps

where the government cannot articulate a legitimate,

non-pretextual purpose for the redistricting plan, the

rule would provide a strong motivation for government

officials to adhere to constitutional principles and to

internalize a “sense of constraint” on partisan excesses

in the redistricting process. This is precisely what has

taken place in the context of racial gerrymandering,

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

legislatures internalized the principles underlying

that decision and have generally conformed the redistricting process to those principles. See Richard Pildes,

The Constitutionalization of Democratic Politics, 118

HARV. L. REV. 29, 68–70 (2004). If the Court imposes

a clear rule prohibiting partisan gerrymanders, legislators would be less likely to describe redistricting in

terms of “cannibaliz[ation]” of the other party, see

Hulme v. Madison County, 188 F. Supp. 2d 1041, 1051

(S.D. Ill. 2001), or assert that redistricting is “the

business of rigging elections.” See John Hoeffel,

Six Incumbents Are a Week Away from Easy Election,

WINSTON SALEM J. (Jan. 27, 1988) (quoting State

Senator Mark McDaniel criticizing the North Carolina

legislature). Instead, legislators would need to identify

and articulate a basis for redistricting that adheres to

democratic principles. Driven by the law requiring

them to do so, legislatures would be far more likely to

design districts that actually do conform to those

principles.

CONCLUSION

Amicus hopes that the proposed constitutional

approach articulated in this brief will help this Court

in its consideration of the appropriate constitutional

standard where partisanship is the purpose of the

redistricting.

Respectfully submitted,

DANIEL F. KOLB

Counsel of Record

RUSSELL M. ANELLO

EDITH BEERDSEN

REAGAN T. LYNCH

ELIZABETH A. TIPPETT

DAVIS POLK & WARDWELL LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

daniel.kolb@davispolk.com

Counsel for Amicus Curiae

January 29, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.