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

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O. JOHN BENISEK, ET AL.,

Appellants,

v.

LINDA H. LAMONE, ADMINISTRATOR, MARYLAND STATE

BOARD OF ELECTIONS, ET AL.,

Appellees.

On Appeal From The United States District Court

For The District Of Maryland

BRIEF OF THE

FREEDOM PARTNERS CHAMBER OF COMMERCE

AS AMICUS CURIAE IN SUPPORT OF APPELLEES

DOUGLAS R. COX

Counsel of Record

AMIR C. TAYRANI

DAVID W. CASAZZA

BRIAN M. LIPSHUTZ

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 955-8500

dcox@gibsondunn.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ............................ 1

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

ARGUMENT ............................................................... 3

I.

POLITICAL GERRYMANDERING DOES NOT

IMPLICATE FIRST AMENDMENT RIGHTS ........... 3

A. This Court’s Patronage Cases Do

Not Apply To Political

Gerrymandering ....................................... 4

B. No Other First Amendment Right

Is Implicated By Political

Gerrymandering ....................................... 7

II. A CLAIM OF POLITICAL

GERRYMANDERING IS NOT JUSTICIABLE ........ 11

A. The Constitution Gives Congress,

Not The Courts, The Authority To

Regulate Gerrymandering ..................... 12

B. There Is No Manageable Standard

For First Amendment

Gerrymandering Claims ........................ 17

1. This Court Has Never

Articulated An Administrable

Standard For Political

Gerrymandering Claims.................. 17

2. Neither The Lower Court Nor

The Appellants Offer An

Administrable Standard .................. 22

ii

C. Repeated Redistricting Litigation

Damages The Political Process

And The Courts ...................................... 30

CONCLUSION .......................................................... 35

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Perez,

No. 17-586, 2018 WL 386558

(U.S. Jan. 12, 2018) .............................................. 33

Agre v. Wolf,

No. 17-cv-4392, 2018 WL 351603

(E.D. Pa. Jan. 10, 2018) ....................................... 22

Ala. Legislative Black Caucus v.

Alabama,

231 F. Supp. 3d 1026

(M.D. Ala. 2017) ............................................. 31, 33

Ala. Legislative Black Caucus v.

Alabama,

988 F. Supp. 2d 1285

(M.D. Ala. 2013) ................................................... 22

Anderson v. Celebrezze,

460 U.S. 780 (1983) ................................................ 7

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

135 S. Ct. 2652 (2015) ........................ 13, 14, 15, 31

Badham v. March Fong Eu,

694 F. Supp. 664 (N.D. Cal. 1988) ................... 4, 11

Baker v. Carr,

369 U.S. 186 (1962) .............................................. 12

iv

Bd. of Cty. Comm’rs v. Umbehr,

518 U.S. 668 (1996) ................................................ 4

Branti v. Finkel,

445 U.S. 507 (1980) ................................................ 6

Burdick v. Takushi,

504 U.S. 428 (1992) ................................................ 7

Burns v. Richardson,

384 U.S. 73 (1966) ................................................ 18

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000) .......................................... 9, 10

Colegrove v. Green,

328 U.S. 549 (1946) .............................................. 14

Comm. for a Fair & Balanced Map v.

Ill. State Bd. of Elections,

835 F. Supp. 2d 563 (N.D. Ill. 2011) ................ 4, 10

Cooper v. Harris,

137 S. Ct. 1455 (2017) ........................................ 2, 6

Crawford v. Marion Cty. Election Bd.,

553 U.S. 181 (2008) ............................................ 7, 8

Davis v. Bandemer,

478 U.S. 109 (1986) .............. 8, 9, 14, 18, 19, 26, 33

Elrod v. Burns,

427 U.S. 347 (1976) ................................................ 4

Ferrell v. Hall,

406 U.S. 939 (1972) .............................................. 18

v

Ferrell v. Hall,

339 F. Supp. 73 (W.D. Okla. 1972) ...................... 18

Fortson v. Dorsey,

379 U.S. 433 (1965) .............................................. 18

Gaffney v. Cummings,

412 U.S. 735 (1973) .............................................. 18

Hollingsworth v. Perry,

133 S. Ct. 2652 (2013) .......................................... 11

Holloway v. Hechler,

817 F. Supp. 617 (S.D.W. Va. 1992) ...................... 4

Initiative & Referendum Inst. v. Walker,

450 F.3d 1082 (10th Cir. 2006) .............................. 9

Japan Whaling Ass’n v. Am. Cetacean

Soc’y,

478 U.S. 221 (1986) .............................................. 12

Jimenez v. Hidalgo Cty. Water

Improvement Dist. No. 2,

424 U.S. 950 (1976) .............................................. 17

Jimenez v. Hidalgo Cty. Water

Improvement Dist. No. 2,

68 F.R.D. 668 (S.D. Tex. 1975) ............................ 17

Kerr v. Hickenlooper,

759 F.3d 1186 (10th Cir. 2014) ............................ 34

Kidd v. Cox,

No. 1:06-CV-997, 2006 WL 1341302

(N.D. Ga. May 16, 2006) .......................... 4, 5, 8, 10

vi

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) ............................ 15, 16, 21, 29

League of Women Voters v. Quinn,

No. 1:11-cv-5569, 2011 WL 5143044

(N.D. Ill. Oct. 28, 2011) ................................ 4, 9, 10

League of Women Voters of Fla. v.

Detzner,

172 So. 3d 363 (Fla. 2015) ................................... 32

League of Women Voters of Pa. v.

Commonwealth,

175 A.3d 282 (Pa. 2018) ....................................... 32

McLaughlin v. Florida,

379 U.S. 184 (1964) .............................................. 16

McPherson v. Blacker,

146 U.S. 1 (1892) .................................................... 8

Miller v. Johnson,

515 U.S. 900 (1995) .............................................. 16

Nixon v. United States,

506 U.S. 224 (1993) .................................. 12, 13, 17

O’Lear v. Miller,

222 F. Supp. 2d 850

(E.D. Mich. 2002) ............................................. 4, 10

Pac. States Tel. & Tel. Co. v. Oregon,

223 U.S. 118 (1912) .............................................. 14

vii

Perez v. Texas,

No. 11-CA-360, 2011 WL 9160142

(W.D. Tex. Sept. 2, 2011) ..................................... 22

Pope v. Blue,

809 F. Supp. 392 (4th Cir. 1992) ........................... 3

Radogno v. Ill. State Bd. of Elections,

No. 1:11-cv-4884, 2011 WL 5868225

(N.D. Ill. Nov. 22, 2011) ....................................... 22

Radogno v. Ill. State Bd. of Elections,

No. 1:11-cv-4884, 2011 WL 5025251

(N.D. Ill. Oct. 21, 2011) ........................ 4, 10, 21, 32

Raleigh Wake Citizens Ass’n v. Wake

Cty. Bd. of Elections,

827 F.3d 333 (4th Cir. 2016) ................................ 21

Raleigh Wake Citizens Ass’n v. Wake

Cty. Bd. of Elections,

166 F. Supp. 3d 553 (E.D.N.C. 2016) .................. 21

Republican Party of N.C. v. Martin,

980 F.2d 943 (4th Cir. 1992) .................................. 3

Schlesinger v. Reservists Comm. to Stop

the War,

418 U.S. 208 (1974) .............................................. 17

Vieth v. Jubelirer,

541 U.S. 267 (2004) ................ 5, 6, 9, 19, 20, 21, 30

Vieth v. Jubelirer,

539 U.S. 957 (2003) .............................................. 20

viii

Vieth v. Pennsylvania,

188 F. Supp. 2d 532 (M.D. Pa. 2002) ............... 4, 20

Washington v. Finlay,

664 F.2d 913 (4th Cir. 1981) ........................ 3, 8, 10

Wells v. Rockefeller,

398 U.S. 901 (1970) .............................................. 18

Wells v. Rockefeller,

311 F. Supp. 48 (S.D.N.Y. 1970) .......................... 18

Whitcomb v. Chavis,

403 U.S. 124 (1971) .............................................. 18

Whitford v. Gill,

218 F. Supp. 3d 837

(W.D. Wis. 2016) .................................................. 33

WMCA, Inc. v. Lomenzo,

382 U.S. 4 (1965) .................................................. 17

WMCA, Inc. v. Lomenzo,

238 F. Supp. 916 (S.D.N.Y. 1965) ........................ 17

Zivotofsky v. Clinton,

566 U.S. 189 (2012) .............................................. 12

Federal Constitutional Provisions

U.S. Const. art. I, § 2 ............................................. 8, 13

U.S. Const. art. I, § 3 ................................................. 13

U.S. Const. art. I, § 4 ............................... 11, 12, 13, 32

U.S. Const. art. I, § 5 ................................................. 13

ix

U.S. Const. art. II, § 1 ............................................... 13

U.S. Const. art. III, § 2 .............................................. 11

U.S. Const. art. IV, § 4 .............................................. 13

U.S. Const. amend. XIV ............................................ 16

U.S. Const. amend. XV.............................................. 16

U.S. Const. amend. XXV ........................................... 13

State Constitutional Provisions

Alaska Const. art. VI, § 8 .......................................... 32

Cal. Const. art. XXI, §§ 1–3 ...................................... 32

Wash. Const. art. II, § 43 .......................................... 32

Statutes

2 U.S.C. § 2c......................................................... 15, 32

52 U.S.C. § 10301 ...................................................... 16

Act of Aug. 8, 1911,

37 Stat. 13 ............................................................ 15

Act of Feb. 2, 1872,

17 Stat. 28 ............................................................ 15

Act of Feb. 7, 1891,

26 Stat. 735 .......................................................... 15

Act of Feb. 25, 1882,

22 Stat. 5 .............................................................. 15

x

Act of Jan. 16, 1901,

31 Stat. 733 .......................................................... 15

Act of June 25, 1842,

5 Stat. 491 ............................................................ 14

Electoral Count Act of 1877,

24 Stat. 373 .......................................................... 14

Idaho Code Ann. §§ 72-1501 et seq. .......................... 32

Voting Rights Act of 1965,

79 Stat. 437 .......................................................... 16

Proposed Legislation

H.R. 145,

115th Cong., 1st Sess. (2017)............................... 32

H.R. 151,

115th Cong., 1st Sess. (2017)............................... 32

H.R. 711,

115th Cong., 1st Sess. (2017)............................... 32

H.R. 712,

115th Cong., 1st Sess. (2017)............................... 32

H.R. 713,

115th Cong., 1st Sess. (2017)............................... 32

H.R. 1102,

115th Cong., 1st Sess. (2017)............................... 32

H.R. 3057,

115th Cong., 1st Sess. (2017)............................... 32

xi

H.R. 3537,

115th Cong., 1st Sess. (2017)............................... 32

H.R. 3848,

115th Cong., 1st Sess. (2017)............................... 32

S. 1880,

115th Cong., 1st Sess. (2017)............................... 32

Other Authorities

Jacob Eisler,

Partisan Gerrymandering and the

Illusion of Unfairness, 67 Cath. U.L.

Rev. (forthcoming 2018),

https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=2993876 .................................... 31

Patrick Marley,

Democrats Grab Key Wisconsin

Senate Seat in Tuesday’s Special

Elections, Milwaukee Journal

Sentinel (last updated Jan. 17,

2018), https://www.jsonline.com/

story/news/2018/01/16/wisconsinvoters-chose-legislators-tuesdaysspecial-elections/1038687001 .............................. 31

Md. State Bd. of Elections,

Voter Registration Statistics,

http://www.elections.state.md.us/

voter_registration/stats.html............................... 27

xii

Peter H. Schuck,

The Thickest Thicket: Partisan

Gerrymandering and Judicial

Regulation of Politics, 87 Colum. L.

Rev. 1325 (1987) ................................................... 19

David Wasserman & Ally Flinn,

Introducing the 2017 Cook Political

Report Partisan Voter Index, The

Cook Political Report (Apr. 7, 2017),

https://www.cookpolitical.com/index.

php/introducing-2017-cook-politicalreport-partisan-voter-index ................................. 24

INTEREST OF AMICUS CURIAE1

Amicus curiae Freedom Partners Chamber of

Commerce is a non-profit, non-partisan organization

whose members support free enterprise, fiscal

responsibility, and fair markets. Amicus values

genuine accountability and seeks to ensure that

government at every level—federal, state, and local—

is responsive to the interests of the American people.

Amicus advances this mission by working to educate

the public about the real benefits of freedom,

opportunity, and hard work, by partnering with

government officials to promote free enterprise and

fair opportunities for all, and by holding public

officials accountable for harmful actions. Amicus and

its members are dedicated to preserving the integrity

of the electoral process and the limits imposed by the

Constitution on the judicial power.

SUMMARY OF ARGUMENT

Appellants ask this Court to do what it has never

done before—hold that political gerrymandering

violates the First Amendment. Their request is all the

more bold because they breeze past the question of

what specific First Amendment right is at issue. But

examining the constitutional underpinnings of their

claim exposes the flaws in their theory.

The political patronage decisions on which

Appellants rely are demonstrably inapplicable in the

1

Pursuant to Supreme Court Rule 37.6, counsel for amicus curiae states that no counsel for a party authored this brief in whole

or in part and that no one other than amicus curiae and its counsel made a monetary contribution to fund the preparation or submission of this brief. Pursuant to Supreme Court Rule 37.3, Appellants and Appellees have entered consent on the docket to the

filing of amicus curiae briefs.

2

partisan-gerrymandering setting. As several lower

courts have noted, the harms of patronage are

external to the political process, while the alleged

harm from gerrymandering is internal to the political

process. This difference makes the test from the

patronage cases inapposite to gerrymandering claims

because it would require the courts to prohibit any

partisanship in redistricting, a result at odds with

both common sense and this Court’s repeated

pronouncements that “partisan advantage” is a

permissible redistricting factor. Cooper v. Harris, 137

S. Ct. 1455, 1464 (2017).

The district court and Appellants’ amici also offer

a slew of arguments to extend other doctrines to

encompass claims of political gerrymandering. But

political gerrymandering is not unconstitutional

under any of them, including the ballot-access cases,

a right to representation, the right to association, or

the freedom of expression and belief. The very

disagreement among the briefs supporting Appellants

underscores that Appellants seek not to vindicate an

existing right under the First Amendment but to

shoehorn a new right—unmoored from text, history,

or precedent—into existing First Amendment

jurisprudence.

Appellants’ struggle to identify a First

Amendment right implicated by partisan redistricting

is understandable. This is an area in which the

Constitution simply gives courts no role.

The

Constitution purposefully and specifically gives

control over congressional districting to the state

legislatures while reserving a supervisory power to

Congress. Because the Constitution commits this role

to a coordinate branch of government, it leaves no

3

room for the judiciary to police the role of partisanship

in the redistricting process.

Moreover, even if the Constitution did preserve a

role for courts to try to decide partisan redistricting

cases, the lack of a manageable standard would make

the task impossible. For more than fifty years, this

Court and every lower court to attempt the task have

been unable to define a test that can consistently

distinguish between permissible and impermissible

district maps.

Lower courts have almost uniformly rejected

claims of political gerrymandering because the

plaintiffs failed to define the specific constitutional

right underlying their claims or to articulate a

manageable judicial standard. The Court should

likewise conclude that the practice of political

gerrymandering—even if unpopular or unsavory—

does not violate the First Amendment. Alternatively,

without any means of adjudicating these cases, the

Court should hold claims of partisan gerrymandering

to be nonjusticiable.

ARGUMENT

I. POLITICAL GERRYMANDERING DOES NOT IMPLICATE FIRST AMENDMENT RIGHTS.

For more than 30 years and in multiple

jurisdictions, plaintiffs have been arguing in the lower

courts that political gerrymandering violates the First

Amendment, and almost every court presented with

such a claim has rejected it.2 Neither the theory

2

See Republican Party of N.C. v. Martin, 980 F.2d 943, 959–61

(4th Cir. 1992); Pope v. Blue, 809 F. Supp. 392, 398–99 (4th Cir.

1992); Washington v. Finlay, 664 F.2d 913, 927–28 (4th Cir.

4

advanced

by

Appellants—that

political

gerrymandering

represents

unconstitutional

retaliation for the exercise of their First Amendment

rights—nor any other theory advanced over the years

implicates a right protected by the First Amendment.

Simply put, Appellants “are not prevented from

fielding candidates[,] from voting for the candidate of

their choice,” or from doing anything else protected by

the First Amendment. Badham, 694 F. Supp. at 674.

A. This Court’s Patronage Cases Do Not

Apply To Political Gerrymandering.

Appellants contend that political gerrymandering

constitutes unconstitutional retaliation against them

for engaging in activity protected by the First Amendment. In support of that claim, they rely on this

Court’s political patronage cases, which involve harms

such as termination from a government job or nonrenewal of a public contract. See, e.g., Bd. of Cty.

Comm’rs v. Umbehr, 518 U.S. 668 (1996) (contract);

Elrod v. Burns, 427 U.S. 347 (1976) (employment).

But political gerrymandering lies beyond the scope of

these cases because the state action at issue is materially different.

1981); Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563, 575 (N.D. Ill. 2011); League of Women

Voters v. Quinn, No. 1:11-cv-5569, 2011 WL 5143044, at *1 (N.D.

Ill. Oct. 28, 2011); Radogno v. Ill. State Bd. of Elections, No. 1:11cv-4884, 2011 WL 5025251, at *6–8 (N.D. Ill. Oct. 21, 2011) (Radogno I); Kidd v. Cox, No. 1:06-CV-997, 2006 WL 1341302, at

*15–19 (N.D. Ga. May 16, 2006); O’Lear v. Miller, 222 F. Supp.

2d 850, 860 (E.D. Mich. 2002); Vieth v. Pennsylvania, 188 F.

Supp. 2d 532, 548 (M.D. Pa. 2002); Holloway v. Hechler, 817 F.

Supp. 617, 628–29 (S.D.W. Va. 1992); Badham v. March Fong

Eu, 694 F. Supp. 664, 675 (N.D. Cal. 1988).

5

The harms addressed in this Court’s political patronage cases are highly distinct from the harms alleged by Appellants here. As one lower court has explained, “[t]he direct injuries occasioned in political

patronage cases are outside the electoral process but

impact the electoral process by conditioning employment on political belief and association.” Kidd, 2006

WL 1341302, at *18. Gerrymanders are different. As

the same court explained, “[t]he purpose and effect of

a political gerrymander . . . is to manipulate the electoral process directly, by altering the composition of

electoral districts so a desired election result becomes

more likely.” Id. It is these kinds of harms that Appellants allege. See, e.g., Appellants’ Br. 28 (“dilut[ion]” of votes); id. at 41 (“‘disadvantage’ in the electoral process” (quoting J.S. App. 39a)). But these effects are internal to the electoral process and do not

involve external, non-electoral injuries, such as the

loss of employment or a public contract.

Applying a test designed for harms external to the

electoral process to political gerrymandering would

mean that legislatures could not take politics into account at all when redistricting. The patronage cases

flatly prohibit political considerations for most government jobs and contracts. See Vieth v. Jubelirer,

541 U.S. 267, 294 (2004) (plurality op.). This prohibition is tenable in those contexts only because it is possible to separate politics from decisions about public

employment and contracting. In gerrymandering

cases, however, the motivation for the state action and

the effect of the action both take place in the political

sphere. Transplanting the patronage cases’ outright

prohibition on the consideration of politics to the gerrymandering setting would therefore require remov-

6

ing all political considerations from the inherently political task of redistricting—an absurd and impossible

outcome.

Indeed, the exception in the patronage context for

policy-level jobs underscores how unworkable it would

be to apply First Amendment standards developed in

the patronage setting to political gerrymandering.

The Court has permitted the consideration of applicants’ politics for policy-level jobs, but it has not attempted to devise a balancing test to determine how

much partisanship should be permitted. See, e.g.,

Branti v. Finkel, 445 U.S. 507, 518 (1980). Instead,

the Court has created a bright-line test excluding

these employment decisions from First Amendment

scrutiny. The Court should adopt a similar rule for

political gerrymandering because it is impossible to

determine how much politics is too much in redistricting decisions.

Appellants conveniently argue that redistricting

should take account of some political factors while

eschewing consideration of voting history or partisan

affiliation, but that effort fails. Just last year, the

Court referred to “partisan advantage”—without any

qualification—as a traditional redistricting criterion.

See Cooper, 137 S. Ct. at 1464; see also Vieth, 541 U.S.

at 285 (plurality op.) (politics as legitimate

redistricting criterion); id. at 307 (Kennedy, J.,

concurring in the judgment) (same); id. at 344 (Souter,

J., dissenting) (same); id. at 355 (Breyer, J.,

dissenting) (same). Voting history and partisan

affiliation are the building blocks of political analysis,

and the system without them that Appellants

envision would leave little—if anything—more than

avoiding incumbent conflicts and otherwise suiting

incumbents’ fancies as valid political considerations.

7

Cf. Appellants’ Br. 47–48. This result is far less

democratic than the current system. Partisanship at

least involves the pursuit of ideological goals shared

by large groups of voters; incumbent protection

advances only the personal ambitions of elected

officials. It cannot be that the First Amendment

privileges incumbent protection over other partisan

considerations.

B. No Other First Amendment Right Is

Implicated

By

Political

Gerrymandering.

Appellants rest their First Amendment claim

solely on their flawed retaliation theory. Even if the

Court were to take the extraordinary step of deciding

this case on a theory other than the one advanced by

Appellants, there is no other First Amendment right

at issue. Appellants themselves disclaim that gerrymandering implicates the right of ballot access, and

there is no representational, associational, or speech

right in play either.

1. Appellants correctly acknowledge that this

Court’s ballot-access cases, including Anderson v.

Celebrezze, 460 U.S. 780 (1983), are inapplicable to

political gerrymandering. See Appellants’ Br. 39 n.5.

Those cases involve practices such as regulations of

filing deadlines for independent candidates, Anderson, 460 U.S. at 782; prohibitions on write-in voting,

Burdick v. Takushi, 504 U.S. 428, 430 (1992); and

voter-ID laws, Crawford v. Marion Cty. Election Bd.,

553 U.S. 181, 185 (2008). Unlike those practices, partisan gerrymandering does not prevent voters from

casting their ballots or candidates from appearing on

those ballots. Moreover, the test in the ballot-access

cases “applies in lieu of strict scrutiny only to ‘even-

8

handed’ and ‘nondiscriminatory’ restrictions upon voters’ First Amendment rights.” Appellants Br. 39 n.5

(quoting Crawford, 553 U.S. at 189–90). Because partisan gerrymandering claims necessarily allege that

the legislature acted with partiality, the ballot-access

test is inapplicable. Id.

2. Nor has the Maryland General Assembly violated anyone’s representational rights, whether under

the First Amendment alone or in combination with

the provisions of Article I, § 2.

There has been no outright denial of representation. See McPherson v. Blacker, 146 U.S. 1, 26 (1892)

(“It has never been doubted that representatives in

Congress [chosen by district] represented the entire

people of the States acting in their sovereign capacity.”). What Appellants actually seek is a right to success at the ballot box, in the form of remedying “an

identifiable ‘political disadvantage.’” Appellants’ Br.

27. But “the Constitution does not guarantee political

success.” Kidd, 2006 WL 1341302, at *18. “The carefully guarded right to expression does not carry with

it any right to be listened to, believed, or supported in

one’s views.” Washington, 664 F.2d at 928.

Two principles articulated by this Court defeat

any argument based on representational rights in this

case. First, Appellants are not denied any representational rights by an imbalance in the number of representatives from each party compared to the total

number of voters from that party. As early as Davis

v. Bandemer, 478 U.S. 109 (1986), the Court “clearly

foreclose[d] any claim that the Constitution requires

proportional representation or that legislatures in reapportioning must draw district lines to come as near

as possible to allocating seats to the contending parties in proportion to what their anticipated statewide

9

vote will be.” Id. at 130 (plurality op.); see also Vieth,

541 U.S. at 288 (plurality op.) (the Constitution “nowhere says that farmers or urban dwellers, Christian

fundamentalists or Jews, Republicans or Democrats,

must be accorded political strength proportionate to

their numbers”).

Second, “[a]n individual or a group of individuals

who votes for a losing candidate is usually deemed to

be adequately represented by the winning candidate

and to have as much opportunity to influence that

candidate as other voters in the district.” Bandemer,

478 U.S. at 132 (plurality op.). “This is true even in a

safe district where the losing group loses election after

election.” Id.; see also League of Women Voters, 2011

WL 5143044, at *4 (“[T]he First Amendment . . . ‘does

not ensure that all points of view are equally likely to

prevail.’” (quoting Initiative & Referendum Inst. v.

Walker, 450 F.3d 1082, 1101 (10th Cir. 2006)).

Appellants’ amici would find a First Amendment

injury in a certain degree of disproportionate representation and do not accept the idea that all voters are

represented by their elected officials. This Court

should reaffirm its earlier decisions and reject these

far-reaching arguments.

3. Furthermore, no right of association is violated

by political gerrymandering. Although “[r]epresentative democracy in any populous unit of government is

unimaginable without the ability of citizens to band

together in promoting among the electorate candidates who espouse their political views,” the Court has

not prohibited every diminution in the ability of citizens to do so. Cal. Democratic Party v. Jones, 530 U.S.

567, 574 (2000). Far from it. The Court has limited

its involvement in the political process to protecting

10

citizens’ “ability to field candidates for office, participate in campaigns, vote for their preferred candidate,

or otherwise associate with others for the advancement of common political beliefs.” Kidd, 2006 WL

1341302, at *17. For example, in California Democratic Party, the Court held that a “blanket primary,”

in which voters chose a candidate for a party’s nomination regardless of the voter’s or candidate’s party

affiliation, was unconstitutional because it “adulterate[d]” the parties’ “candidate-selection process” and

ultimately “chang[ed] the parties’ message.” 530 U.S.

at 582.

Mere difficulty in association, in contrast, does not

implicate the First Amendment. Appellants are not

prevented from associating, or even effectively prevented from associating. All they are denied is a guaranteed level of success for that association, and the

Constitution protects no such right. Washington, 664

F.3d at 927–28; Comm. for a Fair & Balanced Map,

835 F. Supp. 2d at 575; Radogno I, 2011 WL 5025251,

at *7; O’Lear, 222 F. Supp. 2d at 860.

4. Finally, no right of speech, belief, or expression is implicated by political gerrymandering. The

district lines “do[ ] not prevent any [Appellant] from

engaging in any political speech, whether that be expressing a political view, endorsing and campaigning

for a candidate, contributing to a candidate, or voting

for a candidate.” League of Women Voters, 2011 WL

5143044, at *4; see also Comm. for a Fair & Balanced

Map, 835 F. Supp. 2d at 575. Appellants “are every

bit as free under the new plan to run for office, express

their political views, endorse and campaign for their

favorite candidate, vote, or otherwise influence the political process through their expression.” Kidd, 2006

WL 1341302, at *17. And there is no chilling effect on

11

any speech. An impermissible chilling effect arises

where “an overly broad statute regulat[es] speech,”

but Appellants have no argument that the redistricting map “regulates their speech or subjects them to

any criminal or civil penalties for engaging in protected expression.” Badham, 694 F. Supp. at 675.

*

*

*

Gerrymandering may be unseemly. It may be

something that the people of a State choose to address

with independent commissions or the time-honored

tradition of voting out incumbents, whether in the legislature or governor’s office. Or, in congressional redistricting, it may be something that Congress

chooses to address through its power to regulate congressional elections under Article I, § 4. See infra

Part II.A. The people might even enact a constitutional amendment to provide a right to redistricting

free of all partisan considerations. But despite their

best efforts, Appellants, their amici, and the many

plaintiffs who have preceded them with these oft-rejected arguments have all failed to identify any existing First Amendment right to be free of partisan redistricting.

II. A CLAIM OF POLITICAL GERRYMANDERING IS

NOT JUSTICIABLE.

Even if Appellants could identify a First Amendment right implicated by partisanship in redistricting,

they have not demonstrated that their claim presents

a justiciable question. The federal courts have power

only to decide a “case” or “controversy.” U.S. Const.

art. III, § 2; see also Hollingsworth v. Perry, 133 S. Ct.

2652, 2659 (2013). This power is not unlimited. It is

constrained, in part, by the political question doctrine,

which prohibits courts from intruding “where there is

12

‘textually demonstrable constitutional commitment of

the issue to a coordinate political department; or a

lack of judicially discoverable and manageable standards for resolving it.’” Nixon v. United States, 506 U.S.

224, 228 (1993) (quoting Baker v. Carr, 369 U.S. 186,

217 (1962)).

This case involves a question that is committed to

Congress by the Constitution and that federal courts

lack a means of assessing. As a result, federal courts

“lack[ ] the authority to decide the dispute,” and the

case should be dismissed. Zivotofsky v. Clinton, 566

U.S. 189, 195 (2012).

A. The Constitution Gives Congress, Not The

Courts, The Authority To Regulate Gerrymandering.

The political question doctrine “excludes from judicial review those controversies which revolve

around policy choices and value determinations constitutionally committed for resolution to the halls of

Congress or the confines of the Executive Branch.”

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.

221, 230 (1986). Despite this restriction, Appellants

would have the Court “formulate national policies” on

redistricting in order to resolve the problem of gerrymandering. Id. But this problem is political, “not legal in nature,” and “[t]he judiciary is particularly ill

suited to make such decisions.” Id. (internal quotation marks omitted).

The Constitution assigns state legislatures the

task of regulating congressional elections. U.S. Const.

art. I, § 4. But the Constitution does not give state

legislatures complete autonomy in the exercise of this

power. The Framers anticipated that States could ne-

13

glect or manipulate the districting and electoral processes for untoward ends. To address that possibility,

the Constitution assigns Congress a supervisory role,

namely the power to “at any time by Law make or alter” the regulations governing congressional elections.

Id. “The dominant purpose of the Elections Clause,

the historical record bears out, was to empower Congress to override state election rules.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S.

Ct. 2652, 2672 (2015).

The Election Clause’s assignment of control over

elections to the political branches conforms with the

numerous other provisions giving Congress power to

restrain or superintend elected officials. See U.S.

Const. art. I, § 2 (“The House of Representatives

. . . shall have the sole Power of Impeachment”); id.

§ 3 (“The Senate shall have the sole Power to try all

impeachments.”); id. § 5 (“Each House shall be the

Judge of the Elections, Returns, and Qualifications of

its own Members . . . .”); id. (“Each House may[,]

. . . with the concurrence of two thirds, expel a Member.”); id. art. II, § 1 (“The Congress may determine

the Time of chusing the Electors, and the Day on

which they shall give their Votes . . . .”); id. art. IV, § 4

(“The United States shall guarantee to every State in

this Union a Republican Form of Government . . . .”);

id. amend. XXV (empowering Congress to determine

whether the President is capable of carrying out the

duties of the office in case of a conflict between the

President and the principal officers of the executive

departments).

This Court has held that many of the structural

powers bestowed on the elected branches are not subject to judicial oversight. See, e.g., Nixon, 506 U.S. at

226 (propriety of impeachment trial in the Senate not

14

subject to judicial review); Pac. States Tel. & Tel. Co.

v. Oregon, 223 U.S. 118, 133 (1912) (questions arising

under the Guarantee Clause are “political in character, and therefore not cognizable by the judicial power,

but solely committed by the Constitution to the judgment of Congress”). And, even in times of deep political crisis, the processes provided by the Constitution

have worked to preserve the democratic system established by the Constitution. See, e.g., Electoral Count

Act of 1877, 24 Stat. 373 § 2 (establishing a commission to allow Congress to resolve disputes regarding

the legitimate electoral college vote from several

States).

Like these other structural provisions, the Elections Clause makes clear that “redistricting is a legislative function,” not a judicial one. Ariz. State Legislature, 135 S. Ct. at 2668; see also Bandemer, 478 U.S.

at 145 (O’Connor, J., concurring in the judgment) (“I

do not believe, and the Court offers not a shred of evidence to suggest, that the Framers of the Constitution

intended the judicial power to encompass the making

of such fundamental choices about how this Nation is

to be governed.”). While Appellants would have the

Court wade deep into this “political thicket,” Colegrove v. Green, 328 U.S. 549, 556 (1946), “the Framers of the Constitution envisioned quite a different

scheme. They placed responsibility for correction of

such flaws in the people, relying on them to influence

their elected representatives.” Bandemer, 478 U.S. at

144 (Burger, C.J., concurring in the judgment).

Congress has not shied away from exercising its

supervisory authority. Congress first used that authority to require that congressional elections be conducted through single-member districts. Act of June

25, 1842, 5 Stat. 491. Following this first measure,

15

Congress has frequently invoked its authority to constrain the choices of state legislatures and regulate

the methods of electing members to the House of Representatives. See, e.g., Act of Feb. 2, 1872, 17 Stat. 28,

28 (requiring election by contiguous, single-member

districts of equal population); Act of Feb. 25, 1882, 22

Stat. 5, 5 (same); Act of Feb. 7, 1891, 26 Stat. 735, 736

(same); Act of Jan. 16, 1901, 31 Stat. 733, 734 (requiring election by compact, contiguous, single-member

districts of equal population); Act of Aug. 8, 1911, 37

Stat. 13, 14 (same).

Congress’s authority over congressional redistricting is vast. Currently, Congress directs that

members of Congress be chosen by district and that

no district may elect more than a single member. 2

U.S.C. § 2c. There is no dispute that Congress could

reinstate the requirement of “compact” districts or

that Congress could prohibit States from considering

party registration data in drawing districts. See Br.

of Amici Members of Congress 5 (“It is true . . . that

Congress has the power to limit partisan gerrymandering in congressional elections.”). In fact, “[t]here

can be no dispute that Congress itself may draw a

State’s congressional-district boundaries.” Ariz. State

Legislature, 135 S. Ct. at 2670. But there is no constitutional basis for this Court to assume Congress’s

electoral powers out of concern that Congress has abdicated its responsibilities.

Even as this Court has expanded its oversight of

some aspects of redistricting, it has continued to recognize the democratic value of congressional primacy

in this area. “That Congress is the federal body explicitly given constitutional power over elections is . . .

a noteworthy statement of preference for the democratic process.” League of United Latin Am. Citizens

16

v. Perry, 548 U.S. 399, 416 (2006) (LULAC). Thus, “a

lawful, legislatively enacted plan should be preferable

to one drawn by the courts.” Id.

Recognizing that the Constitution assigns the judiciary no place in restraining partisan redistricting

would not undermine the Court’s oversight of other

aspects of redistricting. In particular, this Court’s racial gerrymandering jurisprudence rests on a unique

constitutional, statutory, and historical footing. See,

e.g., McLaughlin v. Florida, 379 U.S. 184, 191–92

(1964) (“[T]he central purpose of the Fourteenth

Amendment was to eliminate racial discrimination

emanating from official sources in the States.”); Miller

v. Johnson, 515 U.S. 900, 904 (1995) (same). This

Court’s racial gerrymandering cases are intended to

eliminate invidious discrimination based on immutable characteristics and are supported by provisions of

the Constitution, see U.S. Const. amends. XIV, XV,

and congressional enactments, see Voting Rights Act

of 1965, 79 Stat. 437; 52 U.S.C. § 10301, specifically

prohibiting that illicit conduct. No comparable constitutional or statutory directive empowers federal

courts to override Congress and the state legislatures

in order to superintend partisanship in redistricting.

In light of the Framers’ decision to empower Congress and the state legislatures to regulate congressional redistricting, and the absence of any comparable constitutional text authorizing judicial involvement in the process, the Court should hold that partisan redistricting does not present a justiciable question.

17

B. There Is No Manageable Standard For First

Amendment Gerrymandering Claims.

Appellants’ claims are also nonjusticiable for a

second reason. Under the political question doctrine,

courts have no role to play when the asserted claim

“lacks sufficient precision to afford any judicially manageable standard of review.” Nixon, 506 U.S. at 230.

This limit is jurisdictional; when there is no standard

to apply, the case must be dismissed. See Schlesinger

v. Reservists Comm. to Stop the War, 418 U.S. 208, 215

(1974).

Courts have been asked to consider partisan gerrymandering claims for decades under a variety of

constitutional theories, including claims resting on

First Amendment rights. But no court, under any constitutional theory, has devised a standard that consistently and manageably resolves partisan gerrymandering claims. Appellants’ First Amendment theory is no different. Because Appellants have not proposed a judicially manageable standard, their claim

asserts a nonjusticiable question.

1. This Court Has Never Articulated An

Administrable Standard For Political

Gerrymandering Claims.

This Court has struggled with partisan gerrymandering claims for more than fifty years. The early decisions of this Court did not squarely confront the

question of justiciability, but the outcomes of those

cases pointed in both directions. Compare WMCA,

Inc. v. Lomenzo, 382 U.S. 4 (1965), summarily aff’g

238 F. Supp. 916 (S.D.N.Y. 1965) (political redistricting claim is not justiciable); Jimenez v. Hidalgo Cty.

Water Improvement Dist. No. 2, 424 U.S. 950 (1976),

summarily aff’g 68 F.R.D. 668 (S.D. Tex. 1975) (same);

18

Ferrell v. Hall, 406 U.S. 939 (1972), summarily aff’g

339 F. Supp. 73 (W.D. Okla. 1972) (same); Wells v.

Rockefeller, 398 U.S. 901 (1970), summarily aff’g 311

F. Supp. 48 (S.D.N.Y. 1970) (same), with Gaffney v.

Cummings, 412 U.S. 735, 751 (1973) (adjudicating

claim of political apportionment without assessing

justiciability); Fortson v. Dorsey, 379 U.S. 433, 439

(1965) (plans that “cancel out the voting strength of

. . . political elements of the voting population” are invalid); Burns v. Richardson, 384 U.S. 73, 88 (1966)

(quoting Fortson); Whitcomb v. Chavis, 403 U.S. 124,

143 (1971) (same).

When this Court first considered the question in

depth, the outcome was a fractured result. Bandemer,

478 U.S. 109. A plurality of four Justices argued that

partisan gerrymandering claims were cognizable under the Constitution and that plaintiffs were “required to prove both intentional discrimination

against an identifiable political group and an actual

discriminatory effect on that group.” Id. at 127 (plurality op.). The plurality insisted that plaintiffs did

not suffer an injury from “the mere lack of proportional representation” but were entitled to relief if the

district map “consistently degrade[d] a voter’s or a

group of voters’ influence on the political process as a

whole.” Id. at 132. But the plurality could not describe with any specificity when a voter’s influence

was sufficiently “degraded.”

Justice Powell, joined by Justice Stevens, agreed

that partisan gerrymandering claims were justiciable

but proposed a completely different standard for evaluating them. In his view, “the . . . most basic flaw in

the plurality’s opinion [was] its failure to enunciate

any standard that affords guidance to legislatures and

19

courts.” Bandemer, 478 U.S. at 171 (Powell, J., concurring in part and dissenting in part). His alternative standard considered “a number of other relevant

neutral factors,” including “the configurations of the

districts, the observance of political subdivision lines,

and other criteria that have independent relevance to

the fairness of districting”—in short, traditional redistricting criteria. Id. at 162, 165 (Powell, J., concurring

in part and dissenting in part).

The remaining three Justices rejected this endeavor entirely, concluding that “the partisan gerrymandering claims of major political parties raise a

nonjusticiable political question that the judiciary

should leave to the legislative branch as the Framers

of the Constitution unquestionably intended.”

Bandemer, 478 U.S. at 144 (O’Connor, J., concurring

in the judgment). These Justices recognized that the

plurality had produced, at best, a “nebulous standard”

that merely demonstrated the “intractable difficulties

in deriving a judicially manageable standard” for partisan gerrymandering claims. Id. at 155.

Bandemer suggested lower courts should hear

partisan gerrymandering claims but gave scant guidance as to how. The legacy of the Court’s four opinions

was “one long record of puzzlement and consternation.” Vieth, 541 U.S. at 282 (plurality op.). The root

of the problem was that redistricting demands judgments that are “largely subjective and beg questions

that lie at the heart of political competition in a democracy.” Peter H. Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 Colum. L. Rev. 1325, 1365 (1987). Courts are

ill-suited to answer these questions.

The Court recognized that it could not leave the

lower courts struggling with the “recondite standard”

20

enunciated in Bandemer, which “offer[ed] little concrete guidance,” Vieth v. Pennsylvania, 188 F. Supp.

2d 532, 544 (M.D. Pa. 2002), and it decided to take up

the question of partisan gerrymandering again in Vieth v. Jubelirer, 539 U.S. 957 (2003) (noting probable

jurisdiction).

After surveying the disarray sown by the

Bandemer decision, a majority of the Court agreed

that litigating partisan gerrymandering claims was

proving unworkable. A plurality concluded that “political gerrymandering claims are nonjusticiable and

that Bandemer was wrongly decided.” Vieth, 541 U.S.

at 281 (plurality op.). Justice Kennedy was not ready

to “foreclose all possibility of judicial relief,” but concluded that “the failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper.” Id. at 306, 317 (Kennedy, J., concurring in the judgment). Four dissenting Justices offered three separate opinions, each proposing a standard different from one another and from the test proposed by the Bandemer plurality.

Although the lower court in Vieth had principally

analyzed the plaintiffs’ partisan gerrymandering

claims under an equal-protection theory, the complaint also alleged a violation of the First Amendment. 541 U.S. at 314 (Kennedy, J., concurring in the

judgment). Justice Kennedy suggested that “the First

Amendment may offer a sounder and more prudential

basis for judicial intervention in political gerrymandering cases,” but also recognized that a First Amendment theory faced the same fundamental problem

thwarting effective application of a Fourteenth

Amendment theory: the necessity for “a manageable

21

standard by which to measure the effect of the apportionment and so to conclude that the State did impose

a burden or restriction on the rights of a party’s voters.” Id. at 315 (Kennedy, J., concurring in the judgment).

Merely two years after Vieth, the Court considered

whether another set of plaintiffs had “offer[ed] the

Court a manageable, reliable measure of fairness for

determining whether a partisan gerrymander violates

the Constitution.” LULAC, 548 U.S. at 414. The LULAC plaintiffs argued that the challenged map’s use

of “politics in drawing lines of specific districts violate[d] the First Amendment” as well as various other

constitutional provisions. Id. at 409. But the Court

in LULAC reached the same conclusion as it had in

Vieth: A judicially manageable standard remained

elusive. Id. at 423.

Bandemer, Vieth, and LULAC have left courts

struggling to apply a jurisprudence that is “foggy at

best” consisting of “cobbled-together plurality opinions that place district courts in the untenable position of evaluating political gerrymandering claims

without any definitive standards.” Radogno I, 2011

WL 5025251, at *4. The only predictable outcome has

been chaos. See Shapiro v. McManus, 203 F. Supp. 3d

579, 594 (D. Md. 2016) (“while political gerrymandering claims premised on the Equal Protection Clause

remain justiciable in theory, it is presently unclear

whether an adequate standard to assess such claims

will emerge”); Raleigh Wake Citizens Ass’n v. Wake

Cty. Bd. of Elections, 166 F. Supp. 3d 553, 591 n.15

(E.D.N.C.) (observing the “extraordinary tension”

among this Court’s partisan gerrymandering decisions), aff’d in part, 827 F.3d 333, 348 (4th Cir. 2016)

22

(“the Supreme Court has not yet clarified when exactly partisan considerations cross the line from legitimate to unlawful”); Ala. Legislative Black Caucus v.

Alabama, 988 F. Supp. 2d 1285, 1296 (M.D. Ala. 2013)

(ALBC I) (“the standard of adjudication for [plaintiffs’]

claim of partisan gerrymandering is ‘unknowable’”);

Radogno v. Ill. State Bd. of Elections, No. 1:11-cv4884, 2011 WL 5868225, at *2 (N.D. Ill. Nov. 22, 2011)

(Radogno II) (“political gerrymandering claims . . . are

currently ‘unsolvable’ based on the absence of any

workable standard for addressing them”); Perez v.

Texas, No. 11-CA-360, 2011 WL 9160142, at *11 (W.D.

Tex. Sept. 2, 2011) (dismissing political gerrymandering claims due to the absence of “a reliable standard

by which to measure the redistricting plan’s alleged

burden on . . . representational rights”); Agre v. Wolf,

No. 17-cv-4392, 2018 WL 351603, at *23 (E.D. Pa. Jan.

10, 2018) (“No precise test has been agreed upon.”).

Even after the explicit invitation offered by Justice Kennedy’s concurrence in Vieth, the lower courts

have been unable to fashion First Amendment theories into a useful constitutional standard for adjudicating partisan gerrymandering claims. This checkered history—littered with discarded theories that

failed to provide a manageable judicial standard for

deciding these claims—shows that there is simply no

means by which a federal court can effectively evaluate whether a redistricting plan is unduly partisan.

2. Neither The Lower Court Nor The Appellants Offer An Administrable Standard.

Appellants argue that their framework, grounded

in the First Amendment, presents a novel theory capable of untangling the Gordian knot of partisan ger-

23

rymandering. But there is nothing novel about approaching gerrymandering using a First Amendment

lens. The Vieth plaintiffs asserted a First Amendment

claim, arguing that the map violated their right to free

association. Vieth v. Pennsylvania, No. 01-cv-2439,

ECF no. 6 (M.D. Pa. Jan. 11, 2002). A number of other

redistricting challenges, including many of those catalogued above, have brought partisan gerrymandering claims grounded in the First Amendment. See supra note 2. But these claims have proved no more administrable than similar claims sounding in equal

protection. See supra note 2; see also J.S. App. 16a

(noting “uncertainty in the law”).

Neither Appellants nor the district court has proposed an administrable standard based in First

Amendment principles or otherwise.

a. The district court proposed a three-part test requiring plaintiffs alleging a First Amendment-based

partisan gerrymandering claim to prove specific intent, demonstrable vote dilution, and a causal connection between the vote dilution and the mapmakers’

discriminatory intent. J.S. App. 3a–4a. But neither

the alleged vote dilution nor the purported cause-andeffect relationship can be accurately measured by a

court.

The divided results at each stage of the lowercourt proceeding underscore the impossibility of administering this test. While Judges Russell and Niemeyer held, at the pleading stage, that a First Amendment claim was justiciable, their agreement as to the

claim’s contours broke down in application. At the

preliminary-injunction stage, Judge Russell joined

Judge Bredar in holding that Appellants failed to

show “that it was the gerrymander (versus a host of

forces present in every election) that flipped the Sixth

24

District and, more importantly, will continue to control the electoral outcomes in that district.” J.S. App.

17a.

Judge Niemeyer, ostensibly applying the same

test, did not require Appellants to prove that their

electoral losses were caused by the gerrymander, but

instead required only that they show that “absent the

State’s retaliatory intent, the Sixth District lines

would not have been drawn to dilute the electoral

power of Republican voters to the same extent.” J.S.

App. 72a. His circuitous reasoning blends causation

with intent, presuming causation whenever a plaintiff

can show discriminatory or “retaliatory” intent. Despite reciting the number of registered voters moved

from one district to another, the dissenting opinion

makes no mention of how voters actually cast their

votes.

Judge Niemeyer’s standard, which would find a

First Amendment violation whenever there is a shift

in partisan voting patterns, sees impermissible partisan manipulation in every change in margins. This

hypersensitivity overlooks the numerous factors that

influence voting patterns—candidate strength, fundraising, shifts in the national mood, or the self-sorting

of voters moving in and out of districts. While the dissent attributes all changes (automatically labeled

“vote dilution”) to gerrymandering, the Cook Political

Report on which the dissent relies, J.S. App. 52a, concludes that diminished competitiveness in House

races is overwhelmingly attributable to geographic

self-sorting by voters, not to gerrymandering. See David Wasserman & Ally Flinn, Introducing the 2017

Cook Political Report Partisan Voter Index, The Cook

Political Report (Apr. 7, 2017) (“Of the 92 ‘Swing

Seats’ that have vanished since 1997, 83 percent of the

25

decline has resulted from natural geographic sorting

of the electorate from election to election, while only

17 percent of the decline has resulted from changes to

district boundaries.”), https://www.cookpolitical.com/

index.php/introducing-2017-cook-political-reportpartisan-voter-index.

Indeed, the results in the Sixth District itself

demonstrate the mutability of electoral choices and

the challenge confronting those who would seek to

measure the alleged dilution or suppression of partisan interests. In 2012, the first election following the

redistricting, Democrat John Delaney defeated the incumbent Republican by a margin of 20.9%. J.S. App.

20a. Two years later, he scraped by to reelection with

only a 1.5% margin of victory even though his Republican opponent did not even live in the Sixth District.

J.S. App. 20a, 21a. In that same election, the Sixth

District supported Republican gubernatorial candidate Larry Hogan with 56% of the vote and a 14-point

margin. J.S. App. 21a. In 2016, Delaney’s margin improved to 14.4%. J.S. App. 20a. This variability is due

entirely to normal political factors—none of the Sixth

District’s boundaries changed between these elections, yet the outcome varied by nearly twenty points.

The only surprising detail is that the Sixth District

became more competitive while most districts are becoming less competitive. See Wasserman & Flinn, supra (“[I]n the 2016 election, 78 percent of Democraticleaning seats grew even more Democratic and 65 percent of Republican-leaning seats grew even more Republican.”).

With this much electoral noise, it is nearly impossible for political scientists, much less generalist

judges, to isolate the signal of partisan redistricting.

As a result, the lower court concluded that Appellants

26

had not shown that these elections were determined

by gerrymandering rather than by “subjective factors

such as evolving political temperament and the personal strengths or weaknesses of individual candidates.” J.S. App. 27a.

b. Appellants’ efforts to prove that the lower court

misapplied their proposed First Amendment standard

merely expose the unworkability of that standard.

Among other serious flaws, Appellants are unable to

propose a metric for assessing the partisan effect of an

alleged gerrymander.

First, Appellants, like the dissent below, rely almost exclusively on voter registration data and the

change in the proportion of registered Democrats to

Republicans. Appellants were forced to rely on registration data because they “conducted no statistical

sampling and have adduced no individual voter data

showing how displaced and current residents of the

Sixth District actually voted in 2012, 2014, and 2016.”

J.S. App. 20a (emphasis added). But registration data

is an unreliable metric. Registration does not reveal

whether a voter actually casts a ballot, much less for

whom the hypothetical ballot is cast. To the contrary,

“while membership in a racial group is an immutable

characteristic, voters can—and often do—move from

one party to the other or support candidates from both

parties.” Bandemer, 478 U.S. at 156 (O’Connor, J.,

concurring in the judgment).

Between 2012 and 2016, the boundaries of the

Sixth District remained unchanged, and the proportion of registered voters by party remained relatively

constant as a result, but the outcomes in actual elections varied widely depending on the candidate and

the conditions. Congressman Delaney, the Democrat

first elected in 2012, prevailed by 20.9%, 1.5%, and

27

14.4% in 2012, 2014, and 2016, respectively. J.S. App.

20a. Those changes cannot be accounted for merely

through shifting voter registration patterns, which

did not fluctuate to nearly the same extent. See Md.

State Bd. of Elections, Voter Registration Statistics

(showing a 1.4:1 registration ratio of Democrats to Republicans in the Sixth District in 2016 and a 1.36:1

ratio in 2014), http://www.elections.state.md.us/

voter_registration/stats.html. Nor can voter registration data account for the differing success of candidates of the same party in the same year. In the same

election in which Congressman Delaney prevailed by

a margin of nearly 21%, his Senate counterpart, the

incumbent Democrat Ben Cardin, achieved only 50%

of the vote in the Sixth District while winning 56%

statewide. J.S. App. 20a. And in 2014, when Congressman Delaney prevailed by a 1.45% margin, the

Sixth District supported gubernatorial candidate Republican Larry Hogan by a 14-point margin. J.S. App.

20a–21a. Unfortunately for Appellants, these are

facts beyond dispute.

Second, Appellants’ statistical arguments are undermined by the absence of a reliable baseline for comparison. Unlike the tests typically proposed by gerrymandering plaintiffs under the Equal Protection

Clause—whether the efficiency gap, partisan symmetry, or statewide proportionality—the metrics proposed by Appellants here are useless when looking at

a single election. Appellants rely on making comparisons across time, looking at outcomes in one election

as compared with another two years before or after.

This makes it impossible to control for the multiplicity

of factors that can affect changes in voter behavior

over time.

28

Furthermore, the absence of a reliable baseline

forces Appellants to presume that the prior map represented a constitutional idyll and that any dilution

from that previous balance violates the Constitution.

Indeed, Appellants’ entire argument is that the legislature unconstitutionally retaliated against them by

reducing the number of registered Republicans in the

Sixth District, diluting Appellants’ votes and resulting in an electoral defeat. But Appellants do not even

attempt to demonstrate that the old lines of the Sixth

District were constitutionally permissible.

A pair of hypotheticals demonstrates the unfounded assumption underlying Appellants’ test. If a

State had a congressional map that was a bipartisan

gerrymander, drawn to provide safe seats to Democrats and Republicans, and redistricted to create competitive districts, under Appellants’ test, voters in

both parties could show that their First Amendment

rights were violated because they were deliberately

deprived of their safe seats. But there is plainly no

constitutional right to a bipartisan gerrymander.

Similarly, consider a State with a severely gerrymandered district map that experienced a change in partisan control. If the new majority party drew non-partisan maps, the former majority party would suffer

precisely the same statistically-based injury and precisely the same vote dilution on which Appellants rely.

Appellants’ metrics thus fail to provide meaningful

guidance to courts.

In light of the challenge of disaggregating the effect of gerrymandering from other political factors,

Appellants even suggest that district courts should

survey enormous numbers of, or perhaps all, voters in

the District. Opp. Mot. Affirm at 11. In effect, Appellants would have district courts conduct a second

29

statewide election (based on purely hypothetical district lines) after each actual election. Such an undertaking is neither an appropriate judicial function nor

required by the First Amendment. Indeed, Appellants

themselves did not even attempt such a burdensome

task.

Without a reliable baseline, Appellants are left

asking how an election would have unfolded had the

candidates run not in the current district but within

the old district lines. But, without even a poll of voting behavior in the old iteration of the district, Appellants can rely on nothing more than speculation. This

reliance is fatal: “Even assuming a court could choose

reliably among different models of shifting voter preferences, [this Court is] wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of

affairs.” LULAC, 548 U.S. at 420 (Kennedy, J., concurring).

What Justice Kennedy said in Vieth remains true

today:

When presented with a claim of injury from

partisan gerrymandering, courts confront two

obstacles. First is the lack of comprehensive

and neutral principles for drawing electoral

boundaries. No substantive definition of fairness in districting seems to command general

assent. Second is the absence of rules to limit

and confine judicial intervention. With uncertain limits, intervening courts—even when

proceeding with the best intentions—would

risk assuming political, not legal responsibility for a process that often produces ill will

and distrust.

30

Vieth, 541 U.S. at 306–07 (Kennedy, J., concurring in

the judgment).

Plaintiffs’ First Amendment standard is insufficient to surmount either of those obstacles.

C. Repeated Redistricting Litigation Damages

The Political Process And The Courts.

Judicial refereeing of partisanship in the redistricting process—whether under the First or Fourteenth Amendment—destabilizes the political

branches and our political system. An opinion of this

Court setting judicially imposed limits on partisan

considerations would diminish electoral accountability and increase legislative gridlock as shifting coalitions transition in and out of power. See Vieth, 541

U.S. at 357–58 (Breyer, J., dissenting). It would also

increase exponentially the already-significant burden

that these cases impose on the judiciary.

There are no countervailing benefits that would

provide a reason to tolerate these untoward outcomes.

Voters already have the ability to use the political process to restrain partisan apportionment. Vieth, 541

U.S. at 362–63 (Breyer, J., dissenting). No matter the

role of partisan considerations in redistricting, voters

still have the final say about which candidate will prevail. For example, five days after one district court

ruled in favor of Republicans in a case challenging

partisan gerrymandering in judicial elections, every

single Republican candidate prevailed under the

prior, invalidated electoral system. See id. at 287 n.8

(plurality op.) (discussing election results). More recently, in a special election for the Wisconsin Senate,

the Democrat candidate decisively won a seat that

had been vacated by a Republican, in a district that

31

Republicans carried in the last two presidential elections. See Patrick Marley, Democrats Grab Key Wisconsin Senate Seat in Tuesday’s Special Elections,

Milwaukee Journal Sentinel (last updated Jan. 17,

2018),

https://www.jsonline.com/story/news/2018/

01/16/wisconsin-voters-chose-legislators-tuesdaysspecial-elections/1038687001. The Wisconsin Senate

map, of course, was invalidated as an unconstitutional

partisan gerrymander by the district court in Gill v.

Whitford, No. 16-1161.

As a practical matter, an overly partisan map

risks spreading the dominant party’s voters too thinly,

leading to the loss of seats. And those losses may be

exacerbated by the perception of undue partisanship,

which may provoke an electoral backlash. See Jacob

Eisler, Partisan Gerrymandering and the Illusion of

Unfairness, 67 Cath. U.L. Rev. (forthcoming 2018) (arguing that “political adaptation” by voters and parties

“undermines the case for litigating partisan gerrymandering”),

https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=2993876. Thus, recent history provides many examples where the party that attempted

to entrench itself through a partisan gerrymander

was voted out of office in short order. See, e.g., Ala.

Legislative Black Caucus v. Alabama, 231 F. Supp. 3d

1026, 1037 (M.D. Ala. 2017) (ALBC II) (“The 2001 partisan gerrymander [by Democrats] failed to save the

Democrats in 2010, when Republicans won supermajorities in both houses.”).

Nor is voting out incumbents the only option

available to citizens. They can limit the legislature’s

role in drawing legislative districts. See Ariz. State

Legislature, 135 S. Ct. at 2663 (upholding a redistricting commission adopted through the initiative pro-

32

cess); Cal. Const. art. XXI, §§ 1–3 (establishing a redistricting commission); Alaska Const. art. VI, § 8

(same); Wash. Const. art. II, § 43 (same); Idaho Code

Ann. §§ 72-1501 et seq. (same). And they can pass

state laws and state constitutional provisions regulating partisan redistricting. See, e.g., League of Women

Voters of Pa. v. Commonwealth, 175 A.3d 282 (mem.)

(Pa. 2018) (interpreting a state constitutional provision to regulate partisan gerrymandering), stay denied sub nom. Turzai v. League of Women Voters of

Pa., No. 17A795 (U.S.) (Alito, J.), opinion issued sub

nom. League of Women Voters of Pa. v. Pennsylvania,

No. 159 MM 2017, 2018 WL 750872 (Pa. Feb. 7, 2018);

League of Women Voters of Fla. v. Detzner, 172 So. 3d

363, 369–70 (Fla. 2015) (applying a “Fair Districts

Amendment” to a state constitution that expressly

prohibited redistricting for partisan advantage).

At the federal level, as discussed above, Congress

also has the authority to police apportionment of congressional districts under the Elections Clause. U.S.

Const. art. I, § 4. Congress has exercised that authority to require single-member districts. 2 U.S.C. § 2c.

And there are no fewer than ten bills currently pending in Congress that propose to regulate apportionment. S. 1880, H.R. 3537, H.R. 3848, H.R. 3057, H.R.

1102, H.R. 713, H.R. 712, H.R. 711, H.R. 151, H.R.

145, 115th Cong., 1st Sess. (2017).

The availability of these non-judicial remedies for

partisan gerrymandering means there is very little

reason for courts to shoulder the serious burdens that

political apportionment challenges impose on judicial

resources. It is a task that never ends. Redistricting

litigation returns “[l]ike a periodic comet, once every

ten years,” Radogno I, 2011 WL 5025251, at *1, and

increasingly in the middle of a cycle, as this appeal

33

and Gill illustrate. Nor is litigation limited to only a

handful of States—apportionment lawsuits are filed

across the nation. Because these lawsuits are heard

by three-judge district courts and require exhaustive

judicial fact-finding, they impose unusually high demands on judges. See, e.g., ALBC II, 231 F. Supp. 3d

1026 (378-page opinion); Whitford v. Gill, 218 F.

Supp. 3d 837 (W.D. Wis. 2016) (128-page opinion), jurisdiction postponed, No. 16-1161 (2017). Redistricting challenges typically drag on for years, often reaching resolution only as the next Census approaches.

See, e.g., Benisek v. Lamone, No. 1:13-cv-3233, ECF

no. 1 (D. Md.) (complaint filed over four years ago);

Abbott v. Perez, No. 17-586, 2018 WL 386558 (U.S.

Jan. 12, 2018) (postponing jurisdiction and scheduling

for argument more than six years after complaint);

Ala. Legislative Black Caucus v. Alabama, No. 2:12cv-691, ECF no. 374 (M.D. Ala. Oct. 23, 2017) (final

judgment after more than five years).

It also is a task of endless scope. As Justice O’Connor observed, “[i]f members of the major political parties are protected by the Equal Protection Clause from

dilution of their voting strength, then members of

every identifiable group that possesses distinctive interests and tends to vote on the basis of those interests

should be able to bring similar claims.” Bandemer,

478 U.S. at 147 (O’Connor, J., concurring in the judgment). “Federal courts will have no alternative,” she

continued, “but to attempt to recreate the complex

process of legislative apportionment in the context of

adversary litigation in order to reconcile the competing claims of political, religious, ethnic, racial, occupational, and socioeconomic groups.” Id. Far from mitigating this danger, Appellants embrace it; they concede that, to resolve their claims, it might “become[ ]

34

necessary” to survey a potentially large number of residents of the Sixth District and analyze the results,

Opp. Mot. Affirm 11—an onerous task by any measure.

The Court has given plaintiffs and lower courts

more than a decade since Vieth to develop a workable

standard for partisan gerrymandering cases. They

have failed to do so, and it is time for the Court to give

clear guidance by holding that these cases are nonjusticiable. To do otherwise would continue to place district courts in “litigation limbo,” condemning them to

“many more years wrestling with [these cases] all

without a wisp of an idea what rule of law might govern [their] disposition.” Kerr v. Hickenlooper, 759

F.3d 1186, 1195 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of rehearing en banc). Recognizing

that these questions are nonjusticiable would

acknowledge the reality of redistricting and relieve

the courts and the political branches of the intolerable

uncertainty sown by prior redistricting decisions.

35

CONCLUSION

The Court should vacate the judgment and direct

the district court to dismiss the complaint because

political gerrymandering does not implicate the First

Amendment and political gerrymandering claims are

nonjusticiable.

Respectfully submitted.

DOUGLAS R. COX

Counsel of Record

AMIR C. TAYRANI

DAVID W. CASAZZA

BRIAN M. LIPSHUTZ

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 955-8500

dcox@gibsondunn.com

Counsel for Amicus Curiae

February 28, 2018