Motion to Dismiss or Affirm — Texas Democratic Party, et al., Appellants v. Greg Abbott, Governor of Texas, et al.

Supreme Court briefDec 8, 2017

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No. 17-680

In the Supreme Court of the United States

TEXAS DEMOCRATIC PARTY, ET AL, A PPELLANTS ,

GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS G OVERNOR OF T EXAS , ET AL , A PPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MOTION TO DISMISS OR AFFIRM

PAUL D. CLEMENT

ERIN E. MURPHY

KEN PAXTON

Attorney General of Texas

KIRKLAND & ELLIS LLP

655 Fifteenth Street, N.W.

Washington, D.C. 20005

JEFFREY C. MATEER

First Assistant

Attorney General

SCOTT A. KELLER

Solicitor General

Counsel of Record

MATTHEW H. FREDERICK

Deputy Solicitor General

ANDREW B. DAVIS

MICHAEL P. MURPHY

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

Q UE S T IO N S P R E S E N T E D

1. Whether this Court has jurisdiction over an appeal of a concededly interlocutory order that (a) was entered more than three years ago, and (b) neither grants

nor denies injunctive relief or its functional equivalent.

2. In the unlikely event that this Court has jurisdiction, whether the district court properly dismissed the

appellants’ partisan-gerrymandering claims where the

appellants repeatedly failed to propose any reliable

standard for such claims.

(I)

T A B LE O F C O N T E N T S

Page

Questions Presented ............................................................ I

Motion to Dismiss or Affirm ...............................................1

Statement..............................................................................2

Argument ..............................................................................7

I. This Court Lacks Jurisdiction to Review the

District Court’s Interlocutory Orders at This

Juncture. ........................................................................7

II. The Appellants’ Claims Were Properly

Dismissed by the District Court, Even

Assuming They Were Justiciable. ............................10

A. Partisan-gerrymandering claims have proven to be not justiciable for lack of a manageable standard.. ...............................................11

B. The appellants failed to offer a reliable

standard for partisan-gerrymandering

claims. ...................................................................12

C. The appellants cannot amend their complaint on appeal to assert the standard

adopted years after dismissal by the district

court in Gill v. Whitford. ....................................14

D. The standard adopted by the district court

in Gill would be no help to the appellants. .......15

Conclusion ...........................................................................18

III

TABLE OF AUTHORITES

Cases:

Abbott v. Perez, No. 17A225,

2017 WL 4014835 (Sept. 12, 2017) ................................ 6

Abbott v. Perez, No. 17A245,

2017 WL 4014810 (Sept. 12, 2017) ................................ 6

Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257 (2015) .................................................. 10

Bowles v. Russell,

551 U.S. 205 (2007) ......................................................... 8

Carson v. Am. Brands, Inc.,

450 U.S. 79 (1981) ........................................................... 9

Davis v. Abbott,

781 F.3d 207 (5th Cir.), cert. denied,

136 S. Ct. 534 (2015) ..................................................... 16

Davis v. Bandemer,

478 U.S. 109 (1986) ................................................. 11, 13

Dolan v. United States,

560 U.S. 605 (2010) ......................................................... 9

LULAC v. Perry,

548 U.S. 399 (2006) ..................................................... 3, 4

United States v. Curry,

47 U.S. (6 How.) 106 (1848) ........................................... 8

United States v. Hays,

515 U.S. 737 (1995) ...................................................... 10

Vieth v. Jubelirer,

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

Whitford v. Gill,

218 F. Supp. 3d 837 (W.D. Wis. 2016) ...... 14, 15, 16, 17

Statutes:

28 U.S.C.

§1253 ........................................................................ 6, 7, 9

§2101(b) ................................................................... 3, 5, 8

Other Authorities:

Legislative Reference Library of Texas,

Membership Statistics, http://www.lrl.state.tx.

us/legeLeaders/members/memberStatistics.cfm ..... 17

Tex. H.B. 150, Act of May 21, 2011, 82d Leg.,

R.S., ch. 1271, 2011 Tex. Gen. Laws 3435 .................... 2

Tex. S.B. 4, Act of June 20, 2011, 82d Leg., 1st

C.S., ch. 1, 2011 Tex. Gen. Laws 5091 .......................... 2

Tex. S.B. 3, Act of June 23, 2013, 83d Leg., 1st

C.S., ch. 2, 2013 Tex. Gen. Laws 4889 .......................... 4

Tex. S.B. 4, Act of June 21, 2013, 83d Leg., 1st

C.S., ch. 3, §2, 2013 Tex. Gen. Laws 5005 .................... 4

Texas Secretary of State, Race Summary Report,

2016 General Election, http://elections.

sos.state.tx.us/elchist319_state.htm ........................... 17

Texas Secretary of State, Race Summary Report,

2014 General Election, http://elections.

sos.state.tx.us/elchist175_state.htm ........................... 17

MOTION TO DISMISS OR AFFIRM

This “appeal” seeks this Court’s review of interlocutory orders entered three and six years ago. This manifestly untimely effort to invoke this Court’s appellate

jurisdiction should be dismissed for lack of jurisdiction

because the underlying orders are not appealable in the

first place, and the appeal would be untimely in any

event. The appellants seek to appeal two interlocutory

orders dismissing partisan-gerrymandering claims for

failure to state a claim on which relief may be granted.

The first of those orders was entered in 2011 and concerned Texas redistricting plans enacted in 2011 and

repealed in 2013. The relatively more recent second order, addressing maps enacted in 2013, was entered in

2014.

This Court lacks jurisdiction over this belated effort

to invoke this Court’s jurisdiction for at least two reasons. First, the orders dismissing the appellants’ claims

concededly were not final when entered, and they did

not grant or deny injunctive relief. Accordingly, they

were and remain non-appealable interlocutory orders,

as they have not yet been reduced to final judgment,

which presumably explains the absence of an appeal in

the many years since the orders were issued. Second, if

the orders were somehow appealable when entered, the

time for appealing them has long passed. Those insurmountable jurisdictional hurdles will remain regardless

of how this Court resolves the State’s pending appeals

of two interlocutory orders recently entered in the same

district court proceedings, as those orders are appeala(1)

ble because they grant injunctive relief, not because

they finally resolve the district court proceedings

and/or reduce all of the district court’s past orders to

final judgment.

Even if this Court had jurisdiction, the district

court’s order would warrant summary affirmance because the appellants’ appeal does not present a substantial federal question. To bring a partisan-gerrymandering claim—assuming that such claims are justiciable—a

plaintiff must identify a judicially manageable standard.

Here, the appellants failed to advance any standard

that this Court had not already rejected. With no viable

standard to apply, the appellants failed to state a claim

upon which relief could be granted, and the district

court correctly dismissed their claims. Accordingly, the

appeal should be dismissed, or in the alternative, the

Court should summarily affirm the orders of the district

court.

STATEMENT

A. In 2011, the Texas Legislature enacted reapportionment plans for Texas state legislative and congressional districts.1 The appellants, among others, sued,

and asserted partisan-gerrymandering claims against

the 2011 plans. J.S. App. 307. The district court granted

the defendants’ motion to dismiss those claims for failure to state a claim on September 2, 2011. J.S. App. 274

(the 2011 Order). Despite the statutory 30-day deadline

Tex. H.B. 150, Act of May 21, 2011, 82d Leg., R.S., ch. 1271,

2011 Tex. Gen. Laws 3435; Tex. S.B. 4, Act of June 20, 2011,

82d Leg., 1st C.S., ch. 1, 2011 Tex. Gen. Laws 5091.

for filing interlocutory appeals, 28 U.S.C. §2101(b), the

appellants waited until September 14, 2017—over six

years later—to file this appeal. J.S. App. 336, 363.

In dismissing the partisan-gerrymandering claims,

the district court explained that the appellants “were

given an opportunity, but they have not, as required by

Vieth [v. Jubelirer, 541 U.S. 267 (2004)] and LULAC [v.

Perry, 548 U.S. 399 (2006)], identified a reliable standard by which to measure the redistricting plan’s alleged

burden on their representational rights.” J.S. App. 299.

The appellants initially proposed that courts “treat[]

partisan gerrymandering cases much like obscenity

cases—courts will know one when they see one,” and

also proposed a “totality of the circumstances” standard. J.S. App. 299. Since a “know one when you see one”

test is inherently subjective and Vieth had already rejected the “totality of the circumstances” standard, see

541 U.S. at 291 (plurality op.), 308 (Kennedy, J., concurring in the judgment), the district court rejected those

approaches as failing to “meet the Supreme Court’s expectation of a ‘clear, manageable, and politically neutral’ standard,” J.S. App. 299 (quoting Vieth, 541 U.S. at

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

The district court also rejected the Quesada appellants’ proposal to allow them to proceed without identifying a standard and hope that one would emerge during the trial. J.S. App. 300. As the court explained, that

approach was rejected in Vieth when “the Court dismissed the claim . . . based on the insufficiency of the

complaint, because it did not allege a manageable

standard.” J.S. App. 300. The court further noted that

requiring a workable standard in the complaint is consistent “with the blackletter principle that a complaint

must state a valid claim for relief for litigation to move

forward,” and “[p]roviding a ‘reliable standard’ for

measuring the burden on [appellants’] representational

rights is necessary to state a claim for relief for political

gerrymandering.” J.S. App. 300 (citing LULAC, 548

U.S. at 418). The appellants’ failure to offer a “reliable

standard” for adjudicating partisan-gerrymandering

claims required dismissal. J.S. App. 300.

B. In 2013, the Texas Legislature repealed the 2011

congressional and state house redistricting plans and

enacted maps that had been ordered into effect by the

district court in 2012 (with only minimal changes to the

state house plan).2 The district court allowed the appellants to amend their complaints to plead claims against

the 2013 plans, J.S. App. 255, and the Texas Democratic

Party (TDP) asserted partisan-gerrymandering claims

against the 2013 congressional and state house plans,

J.S. App. 315, 325.3

The district court once again granted the defendants’ motion to dismiss the claims for failure to state a

claim on which relief may be granted. J.S. App. 215.

Tex. S.B. 3, Act of June 23, 2013, 83d Leg., 1st C.S., ch. 2,

2013 Tex. Gen. Laws 4889 (Texas House); Tex. S.B. 4, Act of

June 21, 2013, 83d Leg., 1st C.S., ch. 3, §2, 2013 Tex. Gen.

Laws 5005 (Congress).

The district court concluded that plaintiff John Morris had

also asserted partisan-gerrymandering claims against the

2013 plans, J.S. App. 233 n.5, but Morris is not a party to this

appeal.

That order issued on June 17, 2014, J.S. App. 215, but

TDP waited until November 6, 2017—over three years

beyond the statutory deadline, 28 U.S.C. §2101(b)—to

file this appeal.

In its order dismissing the claims against the 2013

plans, the district court noted that TDP failed to proffer

any new standard for partisan gerrymandering. J.S.

App. 235. Instead, TDP proposed multiple standards—

the “know it when you see it” test, “totality of the circumstances,” lack of proportionality, and an “extreme”

partisan gerrymander—that had already been rejected

by this Court. J.S. App. 235-36. TDP also argued that

no standard was required because witnesses for the

State defendants had admitted that partisan considerations motivated the districting plans, but the district

court rejected that argument. J.S. App. 236. As the

court recognized, the “sole-intent test was rejected in

Vieth and LULAC v. Perry.” J.S. App. 236.

The district court also rejected TDP’s argument

that “they should be permitted to go to trial and develop the facts from which a standard will emerge.” J.S.

App. 237. The court explained that “development of a

clear, manageable, and politically neutral standard for

measuring the burden on representational rights should

not depend on development of the factual record. Rather, the development of facts should alter only the application of the established standard and the ultimate

conclusion from such application.” J.S. App. 237. Because TDP again failed to propose a viable partisangerrymandering standard, the district court again dismissed their claims.

C. As explained in the State’s pending jurisdictional

statements in Nos. 17-586 & 17-626, the district court

entered orders on August 15, 2017, and August 24, 2017,

blocking the State from using the redistricting plans

the Texas Legislature enacted in 2013—which had been

ordered into effect by the district court in 2012 (with

minimal changes to the state house plan). See J.S. App.

9a, No. 17-586. This Court stayed both orders. Abbott v.

Perez, No. 17A225, 2017 WL 4014835 (Sept. 12, 2017);

Abbott v. Perez, No. 17A245, 2017 WL 4014810 (Sept.

12, 2017). The State has appealed those orders, invoking

this Court’s jurisdiction to review interlocutory orders

granting injunctive relief. See 28 U.S.C. §1253. The

State has not argued that those orders are final judgments, or that they render the district court proceedings final.

After the State filed its separate jurisdictional

statements challenging those orders, TDP filed the instant jurisdictional statement. TDP’s jurisdictional

statement does not seek review of the orders at issue in

the State’s pending appeals, but rather seeks review

only of the district court’s three-year-old order dismissing TDP’s partisan-gerrymandering claims against the

2013 Texas state house and congressional plans, and its

six-year-old order dismissing the appellants’ partisangerrymandering claims against the 2011 plans.

A R G UM E N T

I. This Court Lacks Jurisdiction to Review the District Court’s Interlocutory Orders at This Juncture.

This Court lacks jurisdiction over this extraordinary

effort to seek appellate review of interlocutory orders

that are, respectively, over six- and three-years old.

Any jurisdictional statement that seeks review of orders “entered on September 2, 2011,” and “entered on

June 17, 2014,” J.S. 2, but claims that the appellants

“timely filed their notice of appeal” on “September 14,

2017,” id. at 2, 3, has a lot of explaining to do. And the

only possible reason for missing the appeal deadline by

over three and over six years is that the 2011 and 2014

orders were interlocutory all along. But nothing has

changed to make them any less interlocutory. Accordingly, whether the “appeal” here is years late or still

premature, there is no escaping the conclusion that this

Court lacks jurisdiction over a September 2017 appeal

of orders entered in September 2011 and June 2014.

The appellants openly concede that the orders they

seek to challenge were not final appealable judgments

when they were entered because they resolved only

some, not all, of the claims in this case. J.S. 6. And the

appellants do not even argue that the orders fall within

this Court’s jurisdiction to review an order from a

three-judge district court “granting or denying . . . an

interlocutory . . . injunction,” 28 U.S.C. §1253. Nor

could they. Even if the appellants’ complaints could be

construed to seek specific injunctive relief on their partisan-gerrymandering claims, the orders they seek to

challenge unambiguously resolve only the State’s motions to dismiss. See J.S. App. 215 (“On this date, the

Court considered Defendants’ Motion to Dismiss.”); J.S.

App. 274 (“Pending before the Court is Defendants’

Motion to Dismiss for Lack of Subject Matter Jurisdiction and, in the alternative, Motion for Judgment on the

Pleadings.”).

Moreover, even if there were some theory on which

the challenged orders were appealable when they were

entered, that would solve one jurisdictional problem only to create another more egregious one, as that would

render this appeal manifestly untimely. Congress has

directed that an appeal from a three-judge district

court “shall be taken within thirty days from the judgment, order or decree, appealed from, if interlocutory,

and within sixty days if final.” 28 U.S.C. §2101(b) (emphases added). Yet the appellants waited a remarkable

six years to appeal the 2011 order and over three years

to appeal the 2014 order, see J.S. App. 269; J.S. App.

215; J.S. App. 363 (notice of appeal filed Sept. 14, 2017).

Accordingly, if those orders were appealable when they

were entered, then the appellants missed the statutory

deadline to file their appeal by a combined nine years.

The failure to comply with statutory appellate deadlines is a well-established jurisdictional bar to review.

“As [the Court has] long held, when an ‘appeal has not

been prosecuted in the manner directed, within the time

limited by the acts of Congress, it must be dismissed for

want of jurisdiction.’” Bowles v. Russell, 551 U.S. 205,

213 (2007) (quoting United States v. Curry, 47 U.S. (6

How.) 106 (1848)). And because the statutory filing

deadline is a jurisdictional bar, the appellants could not

(and do not) invoke equitable factors to excuse their

lack of compliance with that deadline. Dolan v. United

States, 560 U.S. 605, 610 (2010). “The prohibition is absolute.” Id.

Rather than squarely confront these obvious jurisdictional problems with their appeal, the appellants just

vaguely suggest in a footnote that the challenged orders

will somehow become appealable should this Court recognize jurisdiction over the State’s pending appeals of

the recent orders at issue in Abbott v. Perez, No. 17-586,

and Abbott v. Perez, No. 17-626. See J.S. 3 n.2 (styling

this as a “protective” appeal, filed “to ensure its consideration in the event the Court concludes jurisdiction exists” in the Abbott v. Perez matters). That is incorrect.

The State has not brought those appeals pursuant to

this Court’s authority to review a judgment that finally

resolves all of the claims in a case. It has brought them

pursuant to this Court’s jurisdiction to review “an order

granting or denying . . . an interlocutory or permanent

injunction.” 28 U.S.C. §1253. Accordingly, the fact that

the Court has jurisdiction over the Abbott v. Perez appeals from specific orders having nothing to do with

these appellants’ long-dismissed partisan-gerrymandering claims does nothing to solve their massive jurisdictional problem. The orders in the Abbott v. Perez

proceedings are appealable because they imposed immediate burdens on the State and had the practical effect of blocking the State from using its existing redistricting plans. See, e.g., Carson v. Am. Brands, Inc.,

450 U.S. 79 (1981). Those orders imposed no burdens on

the would-be appellants here—they did not even address their long-dismissed claims, and in no way did

they reduce any of the district court’s earlier interlocutory orders in this case to final judgment. The district

court proceedings remain ongoing, and the court’s earlier non-final orders remain non-final. While the appellants may appeal the orders they seek to challenge

when the district court reduces those orders to final

judgment, they cannot do so yet. Accordingly, the appeal here is actually too early (because the challenged

interlocutory orders are not yet appealable). But, if not,

then the appeals are years too late. Either way, this

purported appeal must be dismissed for lack of jurisdiction.4

II. The Appellants’ Claims Were Properly Dismissed

by the District Court, Even Assuming They Were

Justiciable.

Even assuming this appeal were somehow timely,

the appellants face an additional jurisdictional barrier:

their claims are not justiciable. See Vieth, 541 U.S. at

305-06 (plurality op.); id. at 306-07 (Kennedy, J., concurring in the judgment) (noting “the lack of comprehensive and neutral principles for drawing electoral

boundaries” and “the absence of rules to limit and con4

TDP’s claims would fail for lack of standing in any event

because it has not alleged that any of its members suffered

an individualized injury on account of partisan gerrymandering in his or her own district. See, e.g., Ala. Legislative Black

Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015); United

States v. Hays, 515 U.S. 737, 745 (1995).

fine judicial intervention”). And even if partisangerrymandering claims were justiciable, the district

court properly dismissed the appellants’ claims because

they failed, despite two chances, to offer a viable legal

standard. In all events, even the partisangerrymandering standard proffered by the district

court in this Court’s pending Gill v. Whitford case

would not come close to sustaining a partisangerrymandering claim on these facts.

A. Partisan-Gerrymandering Claims Have Proven

to Be Not Justiciable for Lack of a Manageable

Standard.

The appellants’ partisan-gerrymandering claims are

not justiciable. Since the Court left the door ajar to the

possibility that partisan-gerrymandering claims could

be justiciable, Davis v. Bandemer, 478 U.S. 109, 118

(1986), over 30 years of litigation has not yielded a justiciable standard, Vieth, 541 U.S. at 306 (plurality op.). In

Vieth, a plurality of this Court concluded that partisangerrymandering claims are not justiciable because, after “[e]ighteen years of judicial effort,” there had

emerged “no judicially discernible and manageable

standards for adjudicating political gerrymandering

claims.” Id. at 281 (plurality op.). And the controlling

concurrence acknowledged the “weighty arguments for

holding cases like these to be nonjusticiable,” while noting that “those arguments may prevail in the long run.”

Id. at 309 (Kennedy, J., concurring in the judgment).

Thirteen years later, a workable standard remains elusive, and the controlling concurrence’s suspicions have

been confirmed: partisan-gerrymandering cases are not

justiciable. Accordingly, the appellants’ claims must fail.

B. The Appellants Failed to Offer a Reliable Standard for Partisan-Gerrymandering Claims.

Even if partisan-gerrymandering claims were justiciable, the district court would have been correct to

dismiss the appellants’ claims here because they failed

to present any workable standard. See J.S. App. 235-37,

299-300. In two attempts over three years, the appellants proposed standards that this Court had already

rejected or that were inherently unreliable.

The appellants started by proposing an obscenitystyle “know it when you see it” test, J.S. App. 299, but

the district court correctly rejected that approach. As

an inherently subjective, case-specific test, the appellants’ know-it-when-you-see-it test would exacerbate

rather than surmount the two main obstacles to adjudicating partisan-gerrymandering claims. It is not a

commonly accepted “substantive definition of fairness,”

and it does not even purport to offer “rules to limit and

confine judicial intervention.” Vieth, 541 U.S. at 307

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

The other standards proposed by the appellants

were correctly rejected by the district court because

they had already been rejected by this Court. J.S. App.

235-36, 299. The appellants’ proposed “totality of the

circumstances” standard was rejected by this Court in

Vieth. See 541 U.S. at 291 (plurality op.), 308 (Kennedy,

J., concurring in the judgment). The same is true of the

appellants’ proposed “proportional representation” and

“sole-intent” standards. J.S. App. 235-36; see Vieth, 541

U.S. at 288 (plurality op.) (rejecting proportional representation standard); id. at 290-91 (plurality op.) (rejecting a standard that asks “whether district boundaries

had been drawn solely for partisan ends to the exclusion

of ‘all other neutral factors relevant to the fairness of

redistricting’”); id. at 307 (Kennedy, J., concurring in

the judgment) (“A determination that a gerrymander

violates the law must rest on something more than the

conclusion that political classifications were applied.”);

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

(agreeing with the plurality that the “other standards

that have been considered,” including “the standards

proposed in Davis v. Bandemer, 478 U.S. 109 (1986), by

the parties before us, and by our dissenting colleagues

are either unmanageable or inconsistent with precedent, or both”); id. at 317 (Kennedy, J., concurring in

the judgment) (“The failings of the many proposed

standards for measuring the burden a gerrymander

imposes on representational rights make our intervention improper.”). And the appellants’ “extreme partisan

gerrymander” standard, J.S. App. 236-37, was correctly

rejected as merely a label, not a standard, or at most,

an attempt to repackage the flawed “totality of circumstances” and proportional-representation standards, id.

The district court also correctly rejected the appellants’ argument that they did not have to offer a legal

standard at all but, rather, should have been allowed “to

go to trial and develop the facts from which a standard

will emerge.” J.S. App. 237, 300. That approach contradicts Vieth, which made clear that a plaintiff’s pleadings

must present a justiciable standard for adjudicating

their claims. See Vieth, 541 U.S. at 313 (Kennedy, J.,

concurring in the judgment) (with no justiciable standard, “appellants’ complaint alleges no impermissible use

of political classifications and so states no valid claim on

which relief may be granted” and therefore their partisan-gerrymandering claim “must be dismissed as a result”).

C. The Appellants Cannot Amend Their Complaint on Appeal to Assert the Standard Adopted Years After Dismissal by the District Court

in Gill v. Whitford.

The appellants do not seriously dispute that the district court correctly rejected standards that they actually proposed. Rather, they attempt to abandon their

own proposed standards in the district court in favor of

the theory advanced by the district court in Whitford v.

Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016). See J.S. 11,

13-16. In other words, they urge the Court to revive

their long-dismissed claims based on a standard that (1)

they never proposed, (2) was created by a different district court years after their claims were dismissed, and

(3) this Court has not adopted. See, e.g., J.S. 14 (arguing

that the district court’s orders “should be summarily

reversed and remanded for trial to permit Appellants to

prove their case pursuant to the [Gill v. Whitford]

standard, or alternatively to develop a standard suited

to the facts of this case”).

The appellants’ attempt to amend their complaint on

appeal, years after their claims were dismissed, should

be rejected. To avoid dismissal for failure to state a

claim, a plaintiff must propose “clear, manageable, and

politically neutral standards” for adjudicating the partisan-gerrymandering claim in the plaintiff’s pleadings.

Vieth, 541 U.S. at 307-08, 313 (Kennedy, J., concurring

in the judgment). The appellants failed to meet that

standard. They could not possibly establish that the district court erred in dismissing their claims as they actually formulated them.

D. The Standard Adopted by the District Court in

Gill Would Be No Help to the Appellants.

For largely the same reasons, this Court should reject the appellants’ request to hold this case for Gill v.

Whitford, No. 16-1161. J.S. 2 n.1. Setting aside the

problem that this appeal should not and cannot be held

because this Court plainly lacks jurisdiction over it,

even if this Court were to ultimately adopt the standard

created by the district court in Whitford v. Gill—and it

should not—that outcome would not impact this case

because the appellants’ claims would fail even under

that standard.

The district court in Gill adopted a partisangerrymandering standard that requires the plaintiff to

establish that the redistricting plan “(1) is intended to

place a severe impediment on the effectiveness of the

votes of individual citizens on the basis of their political

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

on other, legitimate legislative grounds.” Gill, 218

F. Supp. 3d at 884. The appellants could not satisfy that

standard for several reasons.

At the outset, the appellants’ challenge to the 2011

plans is moot because the Legislature repealed the

plans and they were never used for any election. See

J.S. App. 217-19 (noting that 2011 plans were repealed

and replaced); see also Davis v. Abbott, 781 F.3d 207,

220 (5th Cir.), cert. denied, 136 S. Ct. 534 (2015) (holding that Texas “repealed the 2011 plan and adopted the

district court’s interim plan in its place, thus mooting

Plaintiffs’ lawsuit” and depriving the district court of

jurisdiction to vacate its preliminary injunction). Moreover, even if the appellants’ challenges to the 2011 plans

could somehow survive the plans’ repeal, those plans

could not have imposed a “severe impediment” on any

voter because they were never used in an election.

The appellants’ challenge to the 2013 plans would

fare no better. That challenge would fail the first prong

of Gill because the plain intent of the Texas Legislature

was to enact remedial redistricting plans created by the

district court, see J.S. App. 3, 73, 96, not to “place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation,” Gill, 218 F. Supp. 3d at 884. True to that purpose,

the Legislature enacted verbatim the congressional

plan previously ordered by the district court, see J.S.

App. 96, and it enacted the court-ordered state house

plan with only minor changes (the most significant of

which was requested by the then-incumbent Democratic representative), see J.S. App. 3, 73, 96.

The appellants’ challenge to the 2013 plans also

would fail the second prong of Gill because, even assuming that proportionality of statewide votes to seats

won were a valid measure of constitutionality, the appellants could not show that either challenged plan has

the effect of burdening the representational rights of

Democratic voters. The appellants provide no data to

support their assertion that Texas’s 2013 plans show “a

durable and extreme bias in favor of Republican candidates.” J.S. 15. Election results suggest the contrary. In

2014 and 2016, statewide Republican candidates won as

much as 61.56% of the vote; statewide Democratic candidates won no more than 43.24%.5 In the same period,

Republicans made up roughly 63% to 65% of the Texas

House of Representatives and 69% of the Texas congressional delegation.6 That proportional share of legislative and congressional seats falls within the range

that Texas Republicans “should be expected to secure”

under the district court majority’s analysis in Gill. See

218 F. Supp. 3d at 904 (“[W]ith single-member, simpleplurality systems like Wisconsin’s, we can expect that

for every 1% increase in a party’s vote share, its seat

share will increase by roughly 2%. Thus, a party that

See Texas Secretary of State, Race Summary Report, 2016

General

Election,

http://elections.sos.state.tx.us/

elchist319_state.htm (last visited Dec. 6, 2017) (52.23% to

55.8% for statewide Republican candidates; 38.38% to 43.24%

for statewide Democratic candidates); Texas Secretary of

State, Race Summary Report, 2014 General Election, at

http://elections.sos.state.tx.us/elchist175_state.htm (last visited Dec. 6, 2017) (58.14% to 61.56% for statewide Republican

candidates; 34.36% to 38.90% for statewide Democratic candidates).

See id.; see also Legislative Reference Library of Texas,

Membership Statistics, at http://www.lrl.state.tx.us/lege

Leaders/members/memberStatistics.cfm (last visited Dec. 6,

2017) (showing party affiliation of members of the Texas

House of Representatives).

gets 52% of the statewide vote should be expected to

secure 54% of the legislative seats.”). With no hope of

satisfying the Gill standard even if it were adopted by

this Court (and with no basis to invoke the Court’s jurisdiction at this stage), the appellants provide no reason to hold this untimely appeal of non-appealable orders for resolution of Gill.

C O N C L U S IO N

The Court should dismiss this appeal for lack of jurisdiction, or, in the alternative, summarily affirm the

district court’s September 2, 2011, and June 17, 2014,

orders insofar as they dismiss the appellants’ partisangerrymandering claims.

Respectfully submitted.