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, ADMINISTRATOR, MARYLAND STATE

BOARD OF ELECTIONS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRIEF OF THE STATE OF WISCONSIN AS

AMICUS CURIAE SUPPORTING APPELLEES

BRAD D. SCHIMEL

Attorney General

MISHA TSEYTLIN

Solicitor General

Counsel of Record

KEVIN M. LEROY

Deputy Solicitor

General

AMY C. MILLER

Assistant Solicitor

General

State of Wisconsin

Department of Justice

17 West Main Street

Madison, WI 53703

tseytlinm@doj.state.wi.us

(608) 267-9323

BRIAN P. KEENAN

Assistant Attorney

General

Attorneys for Amicus Curiae

QUESTION PRESENTED

Have Appellants articulated a “limited and precise” standard, Vieth v. Jubelirer, 541 U.S. 267, 306

(2004) (Kennedy, J., concurring in the judgment), for

determining when the use of political considerations

in drawing a specific district’s lines violates the First

Amendment?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

INTEREST OF AMICUS CURIAE AND SUMMARY

OF ARGUMENT .........................................................1

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

I. The Tests Proposed In This Case And In

Gill Are Not “Limited And Precise” .................4

A. The Gill Test Is So Uncertain That Even

Its Proponents Cannot Agree On How It

Should Apply To Maryland’s Map ..............4

B. Appellants’ “More Than De Minimis”

Test Is Also Impermissibly Vague..............9

II. Nevertheless,

Appellants’

First

Amendment-Based Approach Has Some

Advantages Over The Symmetry-Based

Test Urged In Gill ..........................................14

A. Appellants’ Test Does Not Rest Upon An

Unprecedented Statewide Standing

Theory ........................................................15

B. Appellants’ Test Does Not Require

Constitutionalizing

The

“Partisan

Symmetry” Concept ..................................16

iii

C. Appellants’ Test Avoids A Statewide

“Hypothetical State Of Affairs” Inquiry ...22

D. Appellants’ Test Is Not Systematically

Biased In Favor Of One Political Party ...27

CONCLUSION ..........................................................30

iv

TABLE OF AUTHORITIES

Cases

Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257 (2015)......................................... 15

Benisek v. Lamone,

266 F. Supp. 3d 799 (D. Md. 2017) ........... 7, 11, 26

Comm. for a Fair and Balanced Map v. Ill. State

Bd. of Elections,

835 F. Supp. 2d 563 (N.D. Ill. 2011)................... 20

Davis v. Bandemer,

478 U.S. 109 (1986) ............................................. 11

Gaffney v. Cummings,

412 U.S. 735 (1973) ............................................. 21

League of United Latin Am. Citizens v. Perry,

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

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

429 U.S. 274 (1977) ............................................. 11

Shaw v. Hunt,

517 U.S. 899 (1996) ............................................. 15

Vieth v. Jubelirer,

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

Whitford v. Gill,

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

v

Other Authorities

Christian R. Grose & Bruce I. Oppenheimer, The

Iraq War, Partisanship, and Candidate

Attributes: Variation in Partisan Swing in the

2006 U.S. House Elections, 32 Leg. Stud. Q.

531 (November 2007) .......................................... 23

Edward B. Foley, Due Process, Fair Play, And

Excessive Partisanship: A New Principle For

Judicial Review Of Election Laws, 84 U. Chi.

L. Rev. 655 (2017) ............................................... 16

G.L. Squires, Practical Physics (4th ed. 2001) ........ 27

Gary King, Representation through Legislative

Redistricting: A Stochastic Model, 33 Am. J.

Pol. Sci. 787 (1989).............................................. 24

Illinois State Board of Elections, Election Results,

General Election – 11/6/2012 ............................ 29

Maryland State Board of Elections, 2012

Presidential General Election Results (Nov. 28,

2012) .......................................................... 6, 26, 27

Maryland State Board of Elections,

Official 2014 Gubernatorial General Election

results for Representative in Congress (Dec. 2,

2014) .......................................................... 8, 26, 27

vi

Maryland State Board of Elections,

Official 2016 Presidential General Election

results for Representative in Congress (Dec. 9,

2016) .......................................................... 8, 26, 27

Nicholas O. Stephanopoulos & Eric M. McGhee,

Partisan Gerrymandering and the Efficiency

Gap, 82 U. Chi. L. Rev. 831 (2015)................... 6, 7

Wisconsin Elections Commission Canvass

Reporting System, Canvass Results for 2016

General Election (Dec. 22, 2016) ........................ 25

Wisconsin Elections Commission Canvass

Reporting System, Canvass Results for 2018

Special Election State Senate District 10 (Jan.

25, 2018) .............................................................. 25

INTEREST OF AMICUS CURIAE AND

SUMMARY OF ARGUMENT

The State of Wisconsin has a special interest in

this case given that Gill v. Whitford, No. 16-1161

(U.S. 2017), is currently pending before this Court.

The plaintiffs in Gill brought a statewide challenge to

Wisconsin’s Assembly map, built around the “partisan symmetry” concept. Appellants’ brief in the present case discusses Wisconsin’s briefing in Gill, both

favorably, Br. of Appellants 44–45, and unfavorably,

Br. of Appellants 49–50. In addition, the Campaign

Legal Center, counsel for the Gill plaintiffs, filed an

amicus brief in this case. In that brief, the Center expands upon the arguments it made in Gill, claims to

apply the Gill plaintiffs’ approach to the Maryland

map, and argues that its approach is preferable to Appellants’ test. See Br. of Campaign Legal Center &

Southern Coalition for Social Justice 1, 4, 20–21

(hereinafter “Center’s Br.”).

Wisconsin submits this brief to assist this Court’s

consideration of two approaches to political-gerrymandering claims: the First Amendment–based test

that Appellants advocate here and the partisan symmetry–based approach that the Gill plaintiffs urged

(and that the Center advocates in its amicus brief).

Wisconsin explains that while both tests are fatally

flawed because they are not “limited and precise,” Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy,

J., concurring in the judgment), Appellants’ approach

2

does have certain advantages over the Gill plaintiffs’

approach.

The arguments that the Center’s amicus brief

makes in this case strongly support Wisconsin’s core

point that the Gill plaintiffs’ test is impermissibly

malleable and overbroad. In Gill, Wisconsin explained that accepting the plaintiffs’ argument that

each litigant could pick its own social-science metric

to show partisan effect would lead to an unbounded

approach. The Center’s treatment of Maryland’s map

bears out these concerns. Less than a year ago, the

Center’s primary expert—Dr. Jackman—submitted a

report on the Center’s behalf, which found that the

Maryland map here was clearly lawful under the Gill

plaintiffs’ approach. Yet, in its amicus brief before

this Court, the Center now confidently argues that

the Maryland map is “highly likely” to be unlawful

under this same approach. The cavalier manner with

which the Center discards its own expert’s conclusion

on the legality of Maryland’s map confirms Wisconsin’s warnings about the malleability of the Gill plaintiffs’ approach.

Appellants’ approach, in turn, is also impermissibly vague. Appellants would have the constitutionality of each district turn on whether the plaintiff can

establish “more than de minimis” harm to voters in

that district, in terms of concepts such as partisanvote dilution and depressing voters’ engagement. It

will be trivially easy for plaintiffs to scrounge up an

3

expert or two to testify to a more-than-de-minimis impact on such open-ended inquiries, meaning that numerous districts drawn by legislatures will promptly

spawn expensive and uncertain litigation.

Nevertheless, Appellants’ focus on their own district and the First Amendment retaliation doctrine

has advantages over the Gill plaintiffs’ statewide,

partisan symmetry–based approach. Appellants’ test

does not require this Court to adopt a novel theory of

statewide standing. Appellants also do not ask this

Court to constitutionalize the ahistorical “partisan

symmetry” concept. The Center’s brief shows the extra-constitutional value judgments inherent in that

concept. To take just two examples, this approach

would condemn a legislature for retaining a courtdrawn map simply because that map scored poorly on

certain metrics, while praising a legislature whose obviously partisan measures happen to score well on

those metrics. Appellants also would not force courts

to adjudicate the legality of maps based upon conjectural, statewide “hypothetical state[s] of affairs.”

League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 420 (2006) (opinion of Kennedy,

J.). Finally, Appellants’ approach avoids the systematic bias in favor of the Democratic Party that is a core

feature of a partisan symmetry–based test. According

to Dr. Jackman’s study that the Center repeatedly

touts in its amicus brief, all but two of the House maps

drawn in the last two decades that Jackman would

declare unlawful were drawn by Republicans.

4

ARGUMENT

I. The Tests Proposed In This Case And In Gill

Are Not “Limited And Precise”

Under this Court’s political-gerrymandering jurisprudence, a plaintiff fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) if the plaintiff

does not articulate a “limited and precise” legal standard, Vieth, 541 U.S. at 306, 313 (Kennedy, J., concurring in the judgment), for determining whether there

has been “too much” partisanship, LULAC, 548 U.S.

at 420 (opinion of Kennedy, J.). Both the Center’s

amicus brief and Appellants’ merits brief demonstrate that the Gill plaintiffs’ test and Appellants’ test

fail this foundational requirement.

A. The Gill Test Is So Uncertain That Even

Its Proponents Cannot Agree On How It

Should Apply To Maryland’s Map

In Gill, Wisconsin’s primary non-jurisdictional argument was that the plaintiffs’ test was not “limited

and precise.” Br. of Appellants 41–59, Gill v. Whitford, No. 16-1161 (U.S. 2017) (hereinafter “Wisconsin

Gill Br.”). Every case would boil down to a dispute

over the Gill plaintiffs’ “effects” test, which requires

the map to score poorly, on a statewide basis, on some

metric generally associated with the partisan-symmetry concept. See Wisconsin Gill Br. 45–48. For example, before the district court in Gill, the plaintiffs’

expert—Dr. Jackman—argued for a constitutional

5

threshold of a 7% statewide efficiency gap (“EG”) in

the first election for state legislative districts, a test

that would invalidate a staggering one-third of all

state legislative maps over the last 45 years. Wisconsin Gill Br. 52. When the Gill plaintiffs responded

that this one-third figure was the “upper limit of the

test’s potential reach,” Br. of Appellees 52, Gill v.

Whitford, No. 16-1161 (U.S. 2017) (hereinafter “Gill

Plaintiffs’ Br.”), Wisconsin explained why this would

not be true: “If challengers would lose under Plaintiffs’ 7%-gap-in-the-first-election test, they would

simply advocate a different asymmetry/durability

combination. Some challengers could, for example,

argue that the first election was an outlier and should

therefore be discounted. Notably, 53% of all plans in

the last 45 years had a 7% or greater efficiency gap in

at least one election.” Reply Br. of Appellants 17, Gill

v. Whitford, No. 16-1161 (U.S. 2017) (hereinafter “Gill

Reply Br.”).

The Center’s amicus brief in the present case, especially its treatment of the statewide legality of Maryland’s map, confirms Wisconsin’s warnings. The

Center repeatedly touts a report submitted on the

Center’s behalf by Dr. Jackman in League of Women

Voters of N.C. (LWVNC) v. Rucho, No. 1:16-cv-1164

(M.D. N.C. 2016). See Center’s Br. 11, 13 & n.6, 14 &

n.7, 15–17 (citing Report of Dr. Simon Jackman, dated

April 18, 2017, LWVNC, No. 1:16-cv-1164, ECF No.

72-4 (M.C. N.D. June 19, 2017) (hereinafter “Jackman

Rep.”)). In that report, Dr. Jackman explained that

6

for a congressional map of 7 to 15 districts to have sufficient partisan effect to be “actionable,” the map must

have a 12% or greater statewide EG in its first election. Jackman Rep. 8.1 Applying this approach to

Maryland’s map here, its statewide EG in the first

election is 6.7%, far below Dr. Jackman’s 12% EG

threshold.2 Put another way, under the test that the

1 For larger States, Dr. Jackman recommended a threshold

of a 7.5% EG in the first election. Jackman Rep. 8.

2 The figures that Wisconsin cites here and below come from

Dr. Jackman’s dataset (hereinafter “Jackman Dataset”), produced in LWVNC, No. 16-cv-1164 (M.D. N.C. 2016), which the

Center cites throughout its amicus brief. Center’s Br. 6, 13, 14,

25. This Court can verify Wisconsin’s (and the Center’s) claims

about the House of Representative maps in Jackman’s dataset

by applying the full method for calculating the EG to publicly

available election results. The full method is calculated by dividing the net wasted votes (Republican wasted votes minus

Democratic wasted votes) by the total number of votes. See Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 851–52

(2015). Wasted votes are defined as all votes cast for a losing

candidate and all surplus votes cast for a winning candidate. Id.

In Maryland’s 2012 congressional elections, the Republicans

wasted 167,156 more votes than Democrats out of a total of

2,485,278 votes cast. See Maryland State Board of Elections,

2012 Presidential General Election Results (Nov. 28, 2012),

http://elections.state.md.us/elections/2012/results/general/gen_r

esults_2012_4_008X.html. This yields an efficiency gap of 6.73%

(167,156 / 2,485,278 = 0.0673). A similar calculation is possible

for other maps using publicly available election results, although

7

Center’s expert urged on the Center’s behalf just one

year ago, the Maryland map is clearly lawful.

The Center’s amicus brief does a startling aboutface, declaring that it is “highly likely” that Maryland’s map is unlawful under the Gill plaintiffs’ approach. Center’s Br. 4. The Center does not mention

Dr. Jackman’s contrary conclusion, burying his 12%EG-in-the-first election test in a footnote in a different

part of its brief. Center’s Br. 14 n.7.

The Center can argue that Maryland’s map is unlawful only after resorting to the broadening stratagem that Wisconsin warned about in Gill. The Center

does not discuss the map’s EG in the first election—

which would be the relevant number under Dr. Jackman’s analysis—and instead focuses upon the map’s

average EG over its three elections. Center’s Br. 6.

But the Center neglects to mention that this average

is skewed by a single year—2014—when Democrats

won the Sixth Congressional District by only 1.5%,

Benisek v. Lamone, 266 F. Supp. 3d 799, 809–10 (D.

Md. 2017), driving the statewide EG through the roof,

see Whitford v. Gill, 218 F. Supp. 3d 837, 956 (W.D.

Wis. 2016) (Griesbach, J., dissenting) (“[W]inning

close elections is the surest way to make sure the

other side racks up lots of wasted votes—every losing

vote is wasted, whereas only a few winning votes are

this becomes significantly more complicated for States that—unlike Maryland here—have uncontested election races. Stephanopoulos & McGhee, supra, at 865–67.

8

wasted.”). Indeed, 2014 is the only year where the

2012-Maryland-map’s EG exceeded Dr. Jackman’s

12% EG threshold for the first election. See supra p.

6; Maryland State Board of Elections, Official 2014

Gubernatorial General Election results for Representative in Congress (Dec. 2, 2014);3 Official 2016

Presidential General Election results for Representative in Congress (Dec. 9, 2016).4 The Center is thus

doing just what Wisconsin warned plaintiffs would do

when discussing the analogous 7%-EG-in-first-election rule that Dr. Jackman articulated for state legislative districts in Gill: “If challengers would lose under Plaintiffs’ 7%-gap-in-the-first-election test, they

would simply advocate a different asymmetry/durability combination. Some challengers could, for example, argue that the first election was an outlier and

should therefore be discounted. Notably, 53% of all

plans in the last 45 years had a 7% or greater efficiency

gap in at least one election.” Gill Reply Br. 17 (emphases added).

So when the Center’s amicus brief discusses the

maps that Dr. Jackman would condemn as the “upper

bound” of the Gill plaintiffs’ test’s reach, the Center

does not believe its own argument. Center’s Br. 14.

After all, the very map at issue here is clearly outside

http://elections.state.md.us/elections/2014/results/General

/gen_results_2014_2_008X.html.

3

http://elections.maryland.gov/elections/2016/results/gener

al/gen_results_2016_4_008X.html.

4

9

of Dr. Jackman’s illegality “bound”—and does not appear to be among the 29 plans the Center mentions at

page 14 of its amicus brief—and yet the Center argues

that this map is “highly likely” to be unlawful. Center’s Br. 4. As the Center’s attack on Maryland’s map

shows, the number of maps vulnerable under the Gill

plaintiffs’ approach is limited only by the willingness

of plaintiffs to present any social-science metric on

which that map scores poorly.

In the end, Wisconsin does not take any position

as to whether a court would agree with Dr. Jackman

or the Center as to the legality of Maryland’s map under the Gill plaintiffs’ approach because, frankly,

there is no way for anyone to know. If a plaintiff

wants to condemn a map (as the Center does with

Maryland’s map), that plaintiff will retain an expert

who will articulate social-science test(s) that fit the

plaintiffs’ desired conclusion. See Center’s Br. 5–7.

The defendant will then pick its own preferred metric,

bringing in its own expert. For example, if Maryland

faced a Gill-style challenge to its map, it would be

well-advised to inquire into the availability of Dr.

Jackman’s services. How a district court would settle

such a dispute would be anyone’s guess.

B. Appellants’ “More Than De Minimis” Test

Is Also Impermissibly Vague

Appellants’ district-specific, partisan-gerrymandering theory rests on the First Amendment retaliation

doctrine. See Br. of Appellants 30–31. That is, “the

10

First Amendment prohibits a State from subjecting

individuals to disfavored treatment on the basis of

their . . . politics.” Br. of Appellants 30. But, of

course, mere political motivation in redistricting cannot render a map unconstitutional. That is why in

LULAC this Court rejected the “sole-intent standard,”

which “explicitly disavow[ed]” the need to look past

partisan motivation. 548 U.S. at 418 (opinion of Kennedy, J.); see also id. at 493–94 (Roberts, C.J., concurring in part, concurring in the judgment in part, and

dissenting in part); id. at 511 (Scalia, J., concurring

in the judgment in part and dissenting in part). Rather, “a successful claim” must also “show a burden

. . . on the complainants’ representational rights,” id.

at 418 (opinion of Kennedy, J.), measured by a “limited and precise” standard, Vieth, 541 U.S. at 306

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

Appellants’ articulation of their retaliation-based

test is not “limited and precise.” Under Appellants’

test, a district is an impermissible partisan gerrymander if (1) the legislature drew the district’s lines

with a retaliatory political intent; (2) the district lines

“burden[ed] [voters] in a practical, more-than-de-minimis way;” and (3) the State cannot provide an “acceptable” and “independent” “explanation for the

map’s” political effects. Br. of Appellants 35–36. Appellants’ briefing here shows that both the first element (intent) and the third element (justification) are

not meaningful constraints. “‘[A]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of

11

the reapportionment were intended.’” Br. of Appellants 36 (quoting Davis v. Bandemer, 478 U.S. 109,

129 (1986)). And Appellants provide no examples (or

even a general discussion) of what a legislature could

show to avoid liability under the third element. Accordingly, whether Appellants’ test is “limited and

precise” rests entirely upon the second element:

“more-than-de-minimis” burden.

Appellants are wrong when they argue that morethan-de-minimis is “limited and precise” because it incorporates the burden-shifting framework from

Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). Br. of Appellants

57–58. Under that framework, when a plaintiff shows

that the State imposed an adverse burden on the basis of First Amendment activity, the State then bears

the burden to show it would have taken that same action regardless of the protected conduct. Mt. Healthy,

429 U.S. at 286–87. This framework fails to provide

definiteness to Appellants’ test because it presumes

what government action counts as a prohibited burden, see Benisek, 266 F. Supp. 3d at 811—for example,

a school’s “decision not to rehire” a teacher, Mt.

Healthy, 429 U.S. at 286–87. The elusive question in

the political-gerrymandering context is “how much

partisan dominance is too much.” LULAC, 548 U.S.

at 420 (opinion of Kennedy, J.) (emphases added). A

burden-shifting framework provides no guidance on

that all-important question.

12

Appellants offer other supposedly limiting considerations, but each fails to provide a limited and precise standard for deciding when there has been too

much politics.

Appellants claim that a more-than-de-minimis

burden can include “vote dilution.” Br. of Appellants

41–42. But what counts as vote dilution in the political-gerrymandering context is as vague as the Gill

plaintiffs’ social-science stew. Wisconsin Gill Br. 45–

47. While Appellants in this case rely upon the federal DPI, the Cook Report, and other expert testimony

as their preferred guides, e.g., Br. of Appellants 17–

19, 41, 56, they do not assert that the Constitution favors these sources, or that other plaintiffs could not

rely upon other metrics or experts to establish dilution. Thus, under Appellants’ more-than-de-minimisvote-dilution approach, both sides of the case would

each offer their own preferred metric(s), political report(s), or retained experts, while leaving it to the district court somehow to sort out which construct it

finds most persuasive. Put another way, Appellants

would duplicate the social-science hodgepodge problem that dooms the Gill plaintiffs’ test. Wisconsin Gill

Br. 45–47.

Appellants next assert that a more-than-de-minimis amount of “depressing voters’ engagement,” “reduc[ing] [ ] political engagement,” or “depress[ing]

media interest” would be sufficient. Br. of Appellants

43. But, again, they do not explain how these burdens

would be measured in a limited and precise manner,

13

instead offering a couple of anecdotes and then citing

data showing that fewer voters came to the polls in

certain years. Br. of Appellants 19–20. Unsurprisingly, Appellees have their own anecdotes and data,

urging the opposite conclusion. Br. of Appellees 10–

11. Appellants do not identify any confined, reliable

way to settle such disputes. Absent “clear, manageable, and politically neutral” standards, “the results

from one gerrymandering case to the next would

likely be disparate and inconsistent.” Vieth, 541 U.S.

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

accord J.S. App. 114a (Bredar, J., dissenting) (“standard [must] be viable and manageable . . . beyond the

facts of this case”).

Appellants also claim that a gerrymander causing

a district to elect a representative from the opposite

party is a sufficient burden. Br. of Appellants 40–41.

Of course, a party-switching standard would be “manageable” in one sense; to determine whether this

standard is met, the court would simply compare election results pre- and post-redistricting and see if a

new party won the seat. But “[t]his Court may not

willy-nilly apply standards—even manageable standards—having no relation to constitutional harms.”

Vieth, 541 U.S. at 295 (plurality op.); LULAC, 548

U.S. at 416–20 (opinion of Kennedy, J.) (rejecting the

“sole-intent standard,” despite its simplicity, because

it did not capture the relevant constitutional harm).

In any event, a party-switching standard fails to identify when an altered map, as opposed to an uninspir-

14

ing candidate or other factors, caused the all-important party flip. See J.S. App. 126a (Bredar, J., dissenting) (“Voter behavior is as unpredictable as the

broader societal circumstances that may make one

candidate . . . more appealing[.]”). And a singleminded focus on flipping districts risks bifurcating all

races that unseat an incumbent into a two-step process: the challenger must first win at the ballot box

and then must defend the victory against the incumbent in court.

Finally, it is worth emphasizing that Appellants

do not limit their capacious more-than-de-minimis

test to just vote dilution, lessening enthusiasm, and

party flipping. Instead, they offer these as just three

exemplars of what plaintiffs could show to prevail;

other enterprising plaintiffs can be expected to pick

their own “burdens.” As Appellants themselves explain, they believe there are “many ways” that such a

showing can be made. Br. of Appellants 40. With

these “uncertain limits” as the only guidance, “intervening courts . . . would risk assuming political, not

legal, responsibility for a process that often produces

ill will and distrust.” Vieth, 541 U.S. at 307 (Kennedy,

J., concurring in the judgment).

II. Nevertheless, Appellants’ First AmendmentBased Approach Has Some Advantages Over

The Symmetry-Based Test Urged In Gill

While the Gill plaintiffs’ approach and Appellants’

test both fail Vieth’s requirement that any political-

15

gerrymandering test be “limited and precise,” see supra Part I, Appellants’ district-specific, First Amendment–based test does have several advantages over

the statewide, partisan symmetry–based theory

urged by the Gill plaintiffs. Assuming this Court does

not foreclose all political-gerrymandering challenges,

recognizing these advantages may help this Court

provide guidance to lower courts as to how to consider

political-gerrymandering claims in future cases.

A. Appellants’ Test Does Not Rest Upon An

Unprecedented Statewide Standing Theory

As a threshold matter, the very existence of this

lawsuit refutes the Gill plaintiffs’ assertion that if

this Court wishes to address the legality of political

gerrymandering, it “must” discard the rule that redistricting harms occur only at the district-specific level.

See Gill Plaintiffs’ Br. 28–29. Appellants’ briefing in

this case well demonstrates that, just like this Court

has held time and again in the racial-gerrymandering

context, plaintiffs have standing only to challenge

their own districts in the political context: “[L]ike an

equal-protection challenge to a racial gerrymander,”

a political-gerrymandering claim “‘applies to the

boundaries of electoral districts’” only, not to the

statewide map. Br. of Appellants 45 (quoting Shaw v.

Hunt, 517 U.S. 899, 917 (1996)); accord Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265

(2015). As Wisconsin explained in detail in Gill, dis-

16

carding the district-specific standing rule in the political-gerrymandering context not only contradicts the

single-district nature of political representation in

this country, but would perversely privilege politicalgerrymandering claims over racial-gerrymandering

claims. Wisconsin Gill Br. 27–34.

B. Appellants’ Test Does Not Require Constitutionalizing The “Partisan Symmetry”

Concept

In Gill, plaintiffs urged this Court to adopt “partisan symmetry” as the constitutional lodestar, akin to

the one-person, one-vote standard. Gill Plaintiffs’ Br.

33. They did not cite a single historical source identifying partisan symmetry as a “principle[ ] of fair districting.” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment). As Wisconsin explained, although partisan symmetry currently enjoys a measure

of support in the social-science academy, “‘[t]here is’

. . . ‘no basis in the historical record for saying that

the Constitution embodies a standard of partisan

symmetry.’” Wisconsin Gill Br. 38 (quoting Edward

B. Foley, Due Process, Fair Play, And Excessive Partisanship: A New Principle For Judicial Review Of Election Laws, 84 U. Chi. L. Rev. 655, 727 (2017)). Wisconsin conducted a review of districting from the

Founding to the post–Civil War era, showing that partisan symmetry has no basis in this country’s history.

Wisconsin Gill Br. 5–10, 37–38.

17

Appellants here do not ask this Court to constitutionalize partisan symmetry, focusing instead on the

First Amendment retaliation doctrine. Br. of Appellants 31–39. Nevertheless, Appellants go out of their

way to criticize Wisconsin’s use of history in its Gill

briefing, erroneously believing that Wisconsin intended this history “to suggest that [political gerrymandering] . . . is entitled to a presumption of validity.” Br. of Appellants 49 (citing Wisconsin Gill Br. 5–

10). Wisconsin did not recount the historical record

to support a categorical “presumption” against all

partisanship-based redistricting challenges. Rather,

the point of Wisconsin’s historical discussion was

much more case-specific: to demonstrate the lack of a

“helpful discussion[ ]” of partisan symmetry as a

“principle[ ] of fair districting discussed in the annals

of parliamentary or legislative bodies.” Vieth, 541

U.S. at 308 (Kennedy, J., concurring in the judgment).

Thus, Wisconsin explained that “[t]here is . . . no basis

in the historical record for saying that the Constitution embodies a standard of partisan symmetry,” Wisconsin Gill Br. 38 (citation omitted), and that the historical understanding of gerrymandering did not rest

upon social science, but on the drawing of “fantastic[ally] shape[d]” districts for partisan gain, see Wisconsin Gill Br. 60–61 (citing historical material in

Wisconsin Gill Br. 8–9).

The Center’s amicus brief, in turn, only highlights

why this Court should not constitutionalize partisan

symmetry. Comparing two situations where the Cen-

18

ter praises its approach for reaching a different conclusion from what it believes Appellants’ approach

would require is especially instructive.

The Center first touts its symmetry-based test because, unlike the Center’s understanding of Appellants’ approach, the Center would condemn a plan

where the State’s “previous plan was asymmetric and

[its] current plan is also asymmetric—but was implemented without flipping any districts.” Center’s Br.

23–24. The situation that the Center posits hews

closely to a hypothetical that Judge Griesbach described in his dissenting opinion in Whitford v. Gill.

See Whitford, 218 F. Supp. 3d at 938 (Griesbach, J.,

dissenting). Wisconsin’s Assembly map for 2002 to

2010, which a federal district court drafted in 2002,

see Wisconsin Gill Br. 13, scored poorly on partisansymmetry metrics; indeed, Dr. Jackman identified

that map as one of the 17 most durably asymmetric

maps over a 45-year period. See Joint Appendix

Vol. II SA233, SA235, Gill v. Whitford, No. 16-1161

(U.S. 2017) (hereinafter “Gill SA”).

As Judge

Griesbach pointed out, and as the Center’s amicus

brief here now confirms, a statewide, partisan symmetry–based test would have made it unconstitutional for the Wisconsin Legislature to re-adopt the

immediately prior court-drawn map (after adjusting

for population changes), at least if it could be shown

that the Legislature did so because it liked that map’s

prior results. See Whitford, 218 F. Supp. 3d at 938

(Griesbach, J., dissenting). “[U]nder the [Gill] Plaintiffs’ proposed test the Republicans were obligated . . .

19

to engage in heroic levels of nonpartisan statesmanship . . . [by] draw[ing] a map that was less favorable

to them than even the court-drawn plan that governed the previous decade.” Id. Notably, unlike with

the prior court-drawn map that this Court discussed

in LULAC, 548 U.S. at 446, the fact that Wisconsin’s

2002 court-drawn map featured results that favored

one party was not the product of “preexisting partisan” redistricting. Br. of Appellees 20. A federal court

drew the 1992 Wisconsin map as well, and a Democrat-controlled government drew the one before that.

See Wisconsin Gill Br. 12–13.

The Center also praises its own approach because,

unlike the Center’s understanding of Appellants’ test,

the Center would not condemn a legislature “whose

previous plan was asymmetric and whose current

plan is symmetric thanks to the flipping of one or

more districts.” Center’s Br. 21–23. That is what

happened in 2010 in Illinois, where the Democratcontrolled legislature engaged in such an obvious partisan redistricting that the Gill plaintiffs’ own amici

condemned it. See Amicus Br. of Represent.Us &

Richard Painter 8–10, Gill v. Whitford, No. 16-1161

(U.S. 2017); Amicus Br. of Current & Former State

Legislators 1, Gill, No. 16-1161; Amicus Br. of Senators McCain & Whitehouse 10–11, Gill, No. 16-1161.

Illinois adopted a redistricting map that was—to echo

Justice Sotomayor’s words at the Gill oral argument—“the most extreme map they could make.”

Transcript of Oral Argument at 16, Gill v. Whitford,

20

No. 16-1161 (U.S. 2017). Yet because so many Democrats are naturally packed into Chicago to begin with,

symmetry metrics bless these Democrats’ obviously

partisan efforts as offsetting geographical asymmetries. See Gill Reply Br. 20–21. And, of course, the

Illinois Legislature was not merely “attempt[ing] to

cure [a prior]” partisan redistricting. Br. of Appellees

20 (emphasis omitted). Illinois’ prior map was a compromise map drawn by a divided government. See

Comm. for a Fair and Balanced Map v. Ill. State Bd.

of Elections, 835 F. Supp. 2d 563, 571 (N.D. Ill. 2011).

The Gill plaintiffs’ amici recounted the colorful language with which Illinois Democrats described their

single-minded partisan purposes. See Amicus Br. of

Current & Former State Legislators 6, Gill, No. 161161.

With these two examples, the Center has offered

nothing but its own value judgments. Under the Center’s views, the Wisconsin Legislature simply retaining the court-drawn map, as Judge Griesbach hypothesized, should be more blameworthy than the Illinois

Legislature drawing “the most” pro-Democrat map it

could conjure up. Wisconsin suspects that many voters would have exactly the opposite moral intuition:

they would praise the retention of a court-drawn map,

no matter its score on some social-science metric,

while following the lead of the Gill plaintiffs’ amici in

condemning Illinois Democrats for reconfiguring their

map for partisan gain. The Center has not identified

anything in the Constitution’s text or history requiring the adoption of its own peculiar moral intuitions.

21

While the Center attempts to justify its intuitions

on these matters by reference to two quotes from Justice Kennedy’s opinion in LULAC, those quotes offer

the Center no support, especially when read in context. Center’s Br. 22, 24. The Center first quotes Justice Kennedy’s statement that “a congressional plan

that more closely reflects the distribution of state

party power seems a less likely vehicle for partisan

discrimination than one that entrenches an electoral

minority.” LULAC, 548 U.S. at 419; compare Center’s

Br. 22. But the Center omits the immediately preceding sentence, where Justice Kennedy provided the

critical qualifier that “there is no constitutional requirement of proportional representation, and equating a party’s statewide share of the vote with its portion of the congressional delegation is a rough measure at best.” LULAC, 548 U.S. at 419 (emphasis

added); compare Center’s Br. 22.5 The Center next

quotes Justice Kennedy’s statement that the “test”

proposed by the challengers in LULAC was not “reliab[le]” because it “would leave untouched the 1991

Texas redistricting, which entrenched a party on the

verge of minority status.” 548 U.S. at 419; compare

Center’s Br. 24. Two paragraphs later, however, Jus-

5 Similarly, this Court in Gaffney v. Cummings, 412 U.S. 735

(1973), also cited by the Center, Center’s Br. 22, held only that a

legislature could constitutionally seek the goal of proportional

representation, not that proportional representation (even if articulated as “partisan symmetry”) was a constitutional baseline,

412 U.S. at 754.

22

tice Kennedy explicitly rejected a “symmetry standard” like the Center’s proposed test because it fails to

“provid[e] a standard for deciding how much partisan

dominance is too much.” LULAC, 548 U.S. at 419–20.

More generally, the Center’s reliance on Justice Kennedy’s opinion in LULAC is particularly ironic given

that Justice Kennedy considered and rejected a challenge to the Texas map there based upon precisely the

social-science metrics that the Center and the Gill

plaintiffs have touted. Compare LULAC, 548 U.S. at

419–20 (opinion of Kennedy, J.), with id. at 466–67

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

part).

C. Appellants’ Test Avoids A Statewide “Hypothetical State Of Affairs” Inquiry

Appellants’ approach is also preferable to the Gill

plaintiffs’ statewide test because it focuses on a single

district, thereby avoiding the adoption of “a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of

affairs,” requiring “conjecture about where possible

vote-switchers will reside.” LULAC, 548 U.S. at 420

(opinion of Kennedy, J.).

As the Gill plaintiffs explained, an essential element of a statewide partisan-symmetry-based claim

is “durab[ility].” Gill Plaintiffs’ Br. 33. Some Justices

focused on this point at oral argument, suggesting

that a durability analysis could be a mandatory part

23

of an administrable test. See Transcript of Oral Argument at 12–13, 14–15, Gill, No. 16-1161. The Gill

plaintiffs argued that their preferred method for conducting this inquiry was a uniform swing analysis: assuming that each district will move in unison with the

statewide vote share, see Gill Plaintiffs’ Br. 47, with

“the statewide vote percentage [being] altered by a

fixed amount, typically in one-percentage-point increments, across all districts,” Whitford, 218 F. Supp. 3d

at 899 (citation omitted).

The statewide “hypothetical state of affairs” inquiry that the Gill plaintiffs’ uniform swing analysis

requires—and which Appellants’ approach avoids—is

not “reliable” and thus does not solve the problems of

determining “where possible vote-switchers will reside.” LULAC, 548 U.S. at 420 (opinion of Kennedy,

J.). The core assumption underlying that analysis—

that when a party’s statewide vote-share changes,

that change occurs uniformly throughout each of the

State’s districts—is demonstrably false. In the real

world, “partisan swing varies in size across districts,”

such that “generalizing about national partisan swing

from a central-tendency measure may camouflage

substantial variation.” Christian R. Grose & Bruce I.

Oppenheimer, The Iraq War, Partisanship, and Candidate Attributes: Variation in Partisan Swing in the

2006 U.S. House Elections, 32 Leg. Stud. Q. 531, 533

(November 2007). As even some of the Center’s

strongest supporters have put it, the uniform swing is

“quite restrictive and often unrealistic.” Gary King,

24

Representation through Legislative Redistricting: A

Stochastic Model, 33 Am. J. Pol. Sci. 787, 788 (1989).6

So while some Justices of this Court wondered

during the Gill argument whether projecting how a

map will perform in future elections is “pretty scientific by this point,” Transcript of Oral Argument at

14–15, 18, Gill, No. 16-1161, that is simply not accurate. Both Wisconsin map-drawers and the Gill plaintiffs’ experts used uniform swing to discuss how Wisconsin’s map could perform under different statewide

vote-share scenarios not because such an approach is

scientific or reliable, but because predicting “where

possible vote-switchers will reside” is inherently “conjectur[al].” LULAC, 548 U.S. at 420 (opinion of Kennedy, J.) (emphasis added). The uniform swing

simply provides a rough-and-ready simplifying assumption, which, to be clear, no one seriously believes

obtains in the real world.

Wisconsin election results since the oral argument

in Gill show that the uniform swing’s core assumption

is false. On January 16, 2018, a Democratic candidate

won Wisconsin’s Tenth Senate District with 55% of

6 Professor King proposed a non-uniform swing model in his

amicus brief in LULAC. See Br. of Amici Curiae Profs. Gary

King et al., LULAC v. Perry, 548 U.S. 399 (2006) (Nos. 05-204,

05-254, 05-276, 05-439), 2006 WL 53994, at *9–*11. Justice Kennedy properly dismissed this as simply another “different

model[ ] of shifting voter preferences.” LULAC, 548 U.S. at 420

(opinion of Kennedy, J.).

25

the vote, compared to her Republican challenger’s

44%. Wisconsin Elections Commission Canvass Reporting System, Canvass Results for 2018 Special

Election State Senate District 10 (Jan. 25, 2018).7

This election result contrasts sharply with the previous election in the same district, where a Republican

won with 63% of the vote in 2016. Wisconsin Elections Commission Canvass Reporting System, Canvass Results for 2016 General Election 6 (Dec. 22,

2016).8 If swings in elections were truly uniform, as

the Gill plaintiffs urge this Court to assume, then Wisconsin swung nineteen points in just over one year.

Under the assumptions of a uniform swing analysis—

where voters switch their votes lock-step across all of

a State’s districts—if a statewide election had been

held in January, the result would have been Democrats winning 77 out of 99 seats in the Wisconsin Assembly, with a statewide popular vote advantage of

66%. See id. (popular vote advantage based on a 19point swing from the 2016 statewide vote for United

States Senate, seat count based on adding 19 percentage points to each Democratic Assembly candidate’s

2016 total). In the real world, Democrats have not

won more than 55% of the statewide vote in over 25

years, with their best result being 54.75% in 2006

(which yielded them only 47 out of 99 Assembly seats

http://elections.wi.gov/sites/default/files/Percentage%20Re

sults-Senate%2010%20Special%20Election.pdf.

7

http://elections.wi.gov/sites/default/files/Statewide%20Res

ults%20All%20Offices%20%28post-Presidential%20recount%29

.pdf.

8

26

under a court-drawn map). Joint Appendix Vol. 1

JA220, 222–24, Gill v. Whitford, No. 16-1161 (U.S.

2017); Wisconsin Gill Br. 13. And, of course, if the

uniform swing’s assumptions were correct and Democrats are on track to win such a landslide in both the

statewide popular vote and Assembly seats, the Gill

plaintiffs’ case for court intervention would evaporate

entirely.

The Center’s attempt to apply a uniform swing

analysis to Maryland’s map here further highlights

the uniform swing’s conjectural, unreliable nature.

The Center claims that “[b]ased on the most recent

election results, it would [ ] take a nine-point pro-Republican swing for Republicans to capture even one

additional congressional seat,” which the Center

deems an impossibility. Center’s Br. 7. Republicans,

however, nearly won the Sixth District, losing by only

a “razor’s[ ]edge” in 2014. Benisek, 266 F. Supp. 3d at

808–09. And the swings in voting that have occurred

vary wildly between districts. For example, in the

Sixth district, the Democrats lost about 9% of the vote

between 2012 and 2014 and then gained around 6% of

the vote between 2014 and 2016. See Maryland 2016

Election Results, supra; Maryland 2014 Election Results, supra; Maryland 2012 Election Results, supra.

The other districts saw very different swings: for example

the

Fifth

District

swung

around

-5% for Democrats in 2014 and +3% for Democrats in

2016, while the Seventh District swung about -7% for

Democrats in 2014 and +5% for Democrats in 2016,

27

and the Eighth District swung nearly -3% for Democrats in 2014 and 0% in 2016. See id.

Finally, the fact that computer programs can draw

hundreds or thousands of “alternative” maps—a

methodology mentioned by some Justices of this

Court at the Gill oral argument, Transcript of Oral

Argument at 12–13, 55, Gill, No. 16-1161, but which

the Gill district court held had not been subjected to

adversarial scrutiny in that case, Whitford, 218 F.

Supp. 3d at 918 n.350—does nothing to solve the problem in the uniform swing analysis. Applying the uniform swing across hundreds of alternative maps does

not alleviate the foundational, false “uniformity” assumption or make reliance on that assumption any

less conjectural. Cf. G.L. Squires, Practical Physics 8

(4th ed. 2001) (“Repeated measurements with the

same [inaccurate] apparatus neither reveal nor . . .

eliminate a systematic error.”).

D. Appellants’ Test Is Not Systematically Biased In Favor Of One Political Party

A standard that focused upon the First Amendment retaliation doctrine, like the one Appellants

urge, would also avoid another critical failing of the

Gill plaintiffs’ test: it would not be systematically biased in favor of the modern Democratic Party.

In Gill, Wisconsin showed that, with respect to

state legislative maps, partisan symmetry metrics are

biased against Republican-drawn maps and favor

28

Democrat-drawn maps because Republicans today

enjoy a natural symmetry advantage. Gill Reply Br.

19–22. When Republicans today draw maps to favor

their party, those maps are coded as egregiously increasing asymmetries in their favor; whereas when

Democrats act in just as partisan a manner, they are

scored as benignly cancelling out natural asymmetries. Gill Reply Br. 20–21. Dr. Jackman’s report in

Gill, which surveyed the efficiency gap of state legislative districts, bore this out. Dr. Jackman showed a

nationwide shift in efficiency gaps towards Republicans starting in the mid-1990s, when Republicans

controlled only two of the 41 States in the Gill plaintiffs’ dataset. See Gill SA225. Further, of the 17

state-legislative plans which Jackman identified as

the worst performers on the efficiency gap, 16 favored

Republicans. Gill SA235. In contrast, he found that

“few plans” today “generat[e] large, pro-Democratic”

gaps. Gill SA238.

In its brief here, the Center claims that Dr. Jackman’s data for House of Representatives districts

shows that the Gill plaintiffs’ test “plays no favorites

between the parties.” Center’s Br. 15. But the Center

can only make this assertion by focusing upon maps

from 40 years ago, when this country’s political landscape was very different. Looking at a more modern

time period, while Dr. Jackman’s study shows numerous maps that he concludes were unlawful in the last

20 years, only two of those unlawful maps were Democratic plans. Jackman Dataset. Notably, neither

Maryland’s map in this case nor Illinois’ infamous

29

2010 congressional map are among the two Democratic maps that Dr. Jackman would condemn. See

supra p. 6 & n.2; Illinois State Board of Elections,

Election Results, General Election – 11/6/2012.9 As

Dr. Jackman himself explained, EG “measures in recent decades show a pronounced shift in a negative

direction, indicative of an increased prevalence of districting plans favoring Republicans.”

Jackman

Rep. 7.

The Center’s claim that Jackman’s legislative dataset shows that the “severity” of gerrymandering is

increasing, Center’s Br. 13, is similarly false. As Wisconsin explained in Gill, Jackman’s data in the state

legislative context demonstrates that the efficiency

gap was either the same or more asymmetrical in

1972 (the first year of Jackman’s dataset) than it is

today. Gill Reply Br. 26–27 (citing chart at Gill

SA227). Jackman’s House of Representatives study

evinces the same phenomenon, with virtually identical asymmetries in 1972 as in 2016. Jackman Rep. 30

(chart).

What has changed since 1972 is not the severity of

EG scores, but that Republicans now enjoy an asymmetry advantage due to political geography, meaning

that Republican redistricting efforts are coded on the

Center’s metrics as especially partisan, while Democratic redistricting efforts are coded as cancelling out

https://www.elections.il.gov/ElectionResults.aspx?ID=zYR

Qd0qcpCA%3d.

9

30

asymmetries. Gill Reply Br. 19–22. This Court

should not adopt a methodology so obviously biased in

favor of one of this country’s two major political parties. Compare Texas Amicus Br., Gill v. Whitford, No.

16-1161 (16 Republican Attorneys General speaking

for their States and opposing the Gill plaintiffs’ approach), with Oregon Amicus Br., Gill, No. 16-1161

(16 Democratic Attorneys General and one Independent Attorney General speaking for their States and

supporting the Gill plaintiffs’ approach).

CONCLUSION

This Court should affirm the district court’s order.

Respectfully submitted,

BRAD D. SCHIMEL

Attorney General

MISHA TSEYTLIN

Solicitor General

Counsel of Record

KEVIN M. LEROY

Deputy Solicitor

General

AMY C. MILLER

Assistant Solicitor

General

State of Wisconsin

Department of Justice

17 West Main Street

Madison, WI 53703

tseytlinm@doj.state.wi.us

(608) 267-9323

BRIAN P. KEENAN

Assistant Attorney

General

February 2018