Amicus Curiae Brief — Robert A. Rucho, et al., Applicants v. Common Cause, et al.
Supreme Court briefJan 17, 2018
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No. 17A745
In the Supreme Court of the United
States
ROBERT A. RUCHO, ET AL.
Applicants,
V.
COMMON CAUSE, ET AL.,
Respondents.
MOTION FOR LEAVE TO FILE AMICUS BRIEF, MOTION FOR
LEAVE TO FILE BRIEF ON 8 1/2 BY 11 INCH PAPER, AMICUS
BRIEF IN SUPPORT OF EMERGENCY APPLICATION FOR STAY
FOR THE STATES OF LOUISIANA, TEXAS, MICHIGAN,
AND SOUTH CAROLINA
Jeff Landry
Attorney General of Louisiana
Elizabeth B. Murrill
Counsel of Record
Solicitor General
Office of the Attorney General
Louisiana Department of Justice
1885 N. Third St.
Baton Rouge, LA 70804
(225) 326-6766
murrille@ag.louisiana.gov
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
MOTION FOR LEAVE TO FILE AMICUS BRIEF ..................................................... 1
MOTION FOR LEAVE TO FILE BRIEF ON 8½x11 INCH PAPER........................... 3
INTEREST OF AMICI CURIAE ................................................................................... 5
ARGUMENT .................................................................................................................. 7
I.
This Court Should Grant Petitioners’ Stay Because Failure To Do So
Opens Up States to Additional Litigation and Unsettles Congressional
Districts that have Been In Place Since the 2010 Decennial Census. ....... 8
a.
II.
District Courts Continue to Potentially Expose the Judiciary to
“Embarrassment From Multifarious Pronouncements.” .................. 10
This Case Should be Stayed Because the District Courts “NoneMeans-None” Approach to Partisanship in Redistricting Cases Has
Never Been Accepted by This or Any Other Court. .................................. 11
a.
Justice O’Connor’s Concurrence in Bandemer Correctly
Predicted the Scenario This Court Now Faces, and Therefore the
Court Should Stay this Case Pending Appeal. ............................... 13
CONCLUSION............................................................................................................. 16
CERTIFICATE OF SERVICE ..................................................................................... 18
ii
TABLE OF AUTHORITIES
CASES
Agre v. Wolf, No. 17-4392 (E.D. Pa. October 10, 2017)........................................ passim
Alabama Legislative Black Caucus v. Alabama, 2:12-cv-00691-WKW-MHT-WHP
(M.D. Ala. October 12, 2017)................................................................................. 9
Baker v. Carr, 369 U.S. 186 (1962) ....................................................................... 10, 12
Benisek v. Lamone, 1:13-cv-03233-JKB (D. Md. August 24, 2017) .................. 9, 10, 11
Benisek v. Lamone, 266 F. Supp. 3d 799 (Md. August 24, 2017) ............................... 15
Brooks v. Kemp, 1:17-cv-3856-TCB (ND. Ga. October 3, 2017) ................................... 9
Bush v. Vera, 517 U.S. 952 (1996)............................................................................... 13
Citizens United v. FEC, 558 U.S. 310 (2010) .............................................................. 14
Common Cause v. Rucho, Nos. 16-1026, 16-1164 (M.D.N.C. Jan. 9, 2018) ........ passim
Cooper v. Harris, 137 S. Ct. 1455 (2017) ................................................................ 7, 13
Davis v. Bandemer, 478 U.S. 109 (1986) ............................................................. passim
Diamond v. Torres, 5:17-cv-5054 (E.D. Pa. 2017)................................................... 8, 16
Easley v. Cromartie, 532 U.S. 234 (2001) ................................................................... 13
Gaffney v. Cummings, 412 U.S. 735 (1973) ................................................................ 12
Georgia State Conference NAACP v. Kemp, 1:17-cv-01427-TCB-WSD-BBM
(N.D. Ga. November 1, 2017) ................................................................................ 9
Gill v. Whitford, No. 16-1161 (October 3, 2017) ............................................... 9, 10, 11
Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016) ..................................... 7, 13
Harris v. McCory, 2016 U.S. Dist. LEXIS 71853 (M.D.N.C. June 2, 2016) ................ 7
League of Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ...................................... 12
League of Women Voters v. Commonwealth, 261 MD 2017 (June 15, 2017) ............. 15
iii
League of Women Voters of Michigan v. Johnson, 2:17-cv-14148-DPH-SDD (E.D.
MI December 22, 2017) ................................................................................... 9, 15
Pearson v. Callahan, 555 U.S. 223 (2009) .................................................................. 14
Vieth v. Jubelirer, 541 U.S. 267 (2004) ................................................................. 11, 12
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016)............................................. 11
CONSTITUTION AND STATUTES
U.S. Const. art. 1, § 2 ..................................................................................................... 5
2 U.S.C. 2c
................................................................................................................ 16
OTHER AUTHORITIES
Federal Judicial Center, Sandra Day O’Connor,
https://www.fjc.gov/history/judges/oconnor-sandra-day .................................... 14
iv
No. 17A745
In the Supreme Court of the United
States
ROBERT A. RUCHO, ET AL.
Applicants,
V.
COMMON CAUSE, ET AL.,
Respondents.
MOTION FOR LEAVE TO FILE AMICUS BRIEF
IN SUPPORT OF EMERGENCY APPLICATION FOR STAY
FOR THE STATES OF LOUISIANA, TEXAS, MICHIGAN, AND SOUTH
CAROLINA.
The States of Louisiana, Texas, Michigan, and South Carolina, move the Court
for leave to file an amicus brief in support of Applicants’ Emergency Application for
Stay.
In support of their motion, Amici States assert that the district court ruling at
issue has the potential to affect prior redistricting decisions as well as future
redistricting efforts in the states. The ruling raises grave concerns among the Amici
States about disruption of 2018 elections. Amici States assert the ruling creates
exceptional circumstances that warrant being permitted to be heard on the issue of
Applicants’ Emergency Application for Stay and request their motion to file the
attached amicus brief be granted.
1
Respectfully submitted:
Counsel of Record
Solicitor General
Office of the Attorney General
Louisiana Department of Justice
1885 N. Third St.
Baton Rouge, LA 70804
(225) 326-6766
murrille@ag.louisiana.gov
2
No. 17A745
In the Supreme Court of the United
States
ROBERT A. RUCHO, ET AL.,
Applicants,
v.
COMMON CAUSE, ET AL.,
Respondents.
MOTION FOR LEAVE TO FILE BRIEF ON 81/2 BY 11 INCH
PAPER FOR THE STATES OF LOUISIANA, TEXAS, MICHIGAN,
AND SOUTH CAROLINA.
The States of Louisiana, Texas, Michigan, and South Carolina, move the Court
for leave to file their amicus brief in support of Applicants’ Emergency Application for
Stay on 8 ½ by 11-inch paper rather than in booklet form.
In support of their motion, Amici States assert that Applicant members of the
North Carolina legislature filed its Emergency Application for Stay in this matter on
the afternoon of January 12, 2018. The expedited filing of Applicants’ application due
to the highly compressed timeline they were granted by the district court, See Common
Cause v. Rucho, Nos. 16-1026, 16-1164, slip op. at 189 (M.D.N.C. Jan. 9, 2018) (threejudge court), and the resulting compressed deadline for any response impaired amici's
3
ability to get their brief prepared for printing and filing in booklet form. Amici desire to
be heard on the application and request the Court grant this motion and accept the
paper filing.
Respectfully submitted:
Counsel of Record
Solicitor General
Office of the Attorney General
Louisiana Department of Justice
1885 N. Third St.
Baton Rouge, LA 70804
(225) 326-6766
murrille@ag.louisiana.gov
4
No. 17A745
In the Supreme Court of the United
States
ROBERT A. RUCHO, ET AL.,
Applicants,
v.
COMMON CAUSE, ET AL.,
Respondents.
AMICUS BRIEF IN SUPPORT OF EMERGENCY APPLICATION
FOR STAY FOR THE STATES OF LOUISIANA, TEXAS, MICHIGAN,
AND SOUTH CAROLINA.
INTEREST OF AMICI CURIAE
Amici curiae are the States of Louisiana, Texas, Michigan, and South Carolina.
The district court's ruling has widespread implications for States entering the 2018
election cycle, potentially destabilizing the impending elections across multiple States.
Additionally, amici curiae are or were defendants or intervenor-defendants in either
racial or partisan redistricting litigation since the 2010 decennial census. Furthermore,
amici curiae States all conduct reapportionment by and through their legislative bodies
arising out of the power granted them by Article 1, Section 4, of the United States
Constitution. See U.S. Const. art. 1, § 2. The federal constitution states that “[t]he
Times, Places and Manner of holding Elections for Senators and Representatives, shall
5
be prescribed in each State by the Legislature thereof; but Congress may at any time by
Law make or alter such Regulations, except as to the Places of chusing Senators.” Id.
(emphasis added). Given the States duty to conduct congressional reapportionments as
dictated by the Constitution, amici curiae write in support of Applicants’ Emergency
Motion for Stay Pending disposition of Applicant’s Jurisdictional Statement.1
No counsel for a party authored this brief in whole or in part, and no counsel or party
made a monetary contribution intended to fund the preparation or submission of this
brief. No person other than amicus curiae made a monetary contribution to its
preparation or submission. On January 14-17, 2018, undersigned counsel sought
consent of the parties for the filing of this brief. Counsel for the Applicants granted
consent on January 14, 2018. On January 16-17, 2018, Counsel to Plaintiffs/Appellees
also consented to the filing of this amicus brief. On January 16, 2018, counsel to the
State of North Carolina provided blanket consent to the filing of amicus briefs.
6
ARGUMENT
Multiple state legislators (collectively “Applicants”) have moved to stay
a three-judge district court's order declaring unconstitutional North
Carolina’s legislatively created congressional map on Equal Protection, First
Amendment, and Election’s Clause grounds. Common Cause v. Rucho, Nos.
16-1026, 16-1164, slip op. at 189 (M.D.N.C. Jan. 9, 2018) (three-judge court).
This ruling, based on novel and intellectually contorted reinterpretations of
Supreme Court precedent, wholly ignores—or entirely misinterprets or
rejects—the plain text of the U.S. Constitution, over forty years of Supreme
Court precedent, and ample evidence of the Founders intent to the contrary.
The instant case was filed shortly after a three-judge court denied
consideration of a partisan gerrymandering objection to a remedial map
adopted by the Legislature following a finding of racial gerrymandering. In
Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016), the three-judge
court found the congressional districting map to be a racial gerrymander. In
reviewing objections to the remedial plan, the same three-judge court
declined to hear the partisan gerrymandering claims lodged against the
remedial map. Harris v. McCory, 2016 U.S. Dist. LEXIS 71853 (M.D.N.C.
June 2, 2016). When this Court reviewed that decision in Cooper v. Harris,
this Court made clear that if politics rather than race had been the primary
motivating factor in the drawing of the original map, it would have been
upheld by the courts. See Cooper v. Harris, 137 S. Ct. 1455 (2017).
7
Fundamentally, partisan gerrymandering is the undeniable and
historically permitted consequence of entrusting reapportionment to an
inherently political body: state legislatures. Notwithstanding the misgivings
that fact arises in this, or any other federal court, the simple truth is that
there exists now—and has always existed—a non-judicial remedy to partisan
gerrymandering claims: the power of the people to choose their State
representatives. See Davis v. Bandemer, 478 U.S. 109, 152 (1986) (O’Connor,
J. concurring) (“There is no proof before [the Court] that political
gerrymandering is an evil that cannot be checked or cured by the people or by
the parties themselves.”). Therefore, for the following reasons, this Court
should stay the Memorandum Order of the three-judge panel in Common
Cause v. Rucho pending review in this Court.
I.
This Court Should Grant Petitioners’ Stay Because
Failure To Do So Opens Up States to Additional Litigation and
Unsettles Congressional Districts that have Been In Place
Since the 2010 Decennial Census.
States are now quickly approaching the fourth congressional election
since the 2010 decennial census and are still without clarity on if they can
conduct congressional elections under maps passed over 6 years ago. New
cases are being filed all the time, some with the hope of forcing a redistricting
before the 2018 congressional elections. See e.g. Agre v. Wolf, No. 17-4392
(E.D. Pa. October 10, 2017), ECF No. 20 (three-judge court) (scheduling order
granting setting trial on December 4, 2017, a mere 63 days after the filing of
the complaint); Diamond v. Torres, 5:17-cv-5054 (E.D. Pa. 2017), ECF Nos. 2,
8
40, 69 (motion to expedite and subsequent order of stay pending trial in Agre,
and renewed motions to stay following the decision in Agre); League of
Women Voters of Michigan v. Johnson, 2:17-cv-14148-DPH-SDD (E.D. Mich.
December 22, 2017), ECF No. 1; Georgia State Conference NAACP v. Kemp,
1:17-cv-01427-TCB-WSD-BBM (N.D. Ga. November 1, 2017) (three-judge
court), ECF No. 46 (consolidating Georgia State Conference NAACP v. Kemp,
1:17-cv-1427-TCB-WSD-BBM (N.D. Ga. April, 24, 2017) (three-judge court),
ECF No. 1 and Brooks v. Kemp, 1:17-cv-3856-TCB (ND. Ga. October 3, 2017),
ECF No. 1).
District courts, with claims largely similar to those in Gill, should be
staying those actions. In fact, the district court in this very action refused to
grant a stay, even though the claims are nearly identical to those in Gill. See
Common Cause v. Rucho, Nos. 16-1026, 16-1164 (M.D.N.C. August 29, 2017)
(three-judge court), ECF No. 85 (order denying motion to stay). Other courts
have stayed these claims. Benisek v. Lamone, 1:13-cv-03233-JKB (D. Md.
August 24, 2017) (three-judge court), ECF No. 204 (order granting Stay
pending the outcome of Gill v. Whitford). Other Courts have accelerated these
cases from filing of the Complaint to trial in two months. See e.g. Agre v.
Wolf, No. 17-4392 (E.D. Pa. October 10, 2017) (three-judge court), ECF No.
20. Other courts have dismissed these claims. See e.g. Alabama Legislative
Black Caucus v. Alabama, 2:12-cv-00691-WKW-MHT-WHP (M.D. Ala.
October 12, 2017) (three-judge court), ECF No. 372 (decision finding lack of
9
standing or alternatively partisan gerrymandering claim non-justiciable).
This shotgun approach to jurisprudence leaves the States in the unenviable
position to never know if their reapportionment plans will draw the ire of the
federal judiciary, and leave three-judge panels without guidance as to how to
handle these cases while Gill and Benisek are pending before this Court.
a. District Courts Continue to Potentially Expose the
Judiciary to “Embarrassment From Multifarious
Pronouncements.”
One of the key features of the political question doctrine, as set forth in
Baker v. Carr, is the avoidance of “the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.”
Baker v. Carr, 369 U.S. 186, 217 (1962). This is the situation the federal
judiciary is quickly finding itself in. There have been several instances of
judicial rulings in this area that defy good jurisprudence and due process in
order to, inter alia, attempt to make deadlines or decisions effecting the 2018
congressional elections. See e.g. See e.g. Agre v. Wolf, No. 17-4392 (E.D. Pa.
October 10, 2017) (three-judge court), ECF No. 20 (ordering a highly
expedited schedule of discovery and trial within 63 days); Common Cause v.
Rucho, Nos. 16-1026, 16-1164 (M.D.N.C. August 29, 2017) (three-judge court),
ECF No. 85 (order denying motion to stay).
Chief Justice Roberts points out that a key concern for the judiciary is
with the “integrity of the decisions of this Court in the eyes of the country.”
Transcript of Oral Argument at 38:2-4, Gill v. Whitford, No. 16-1161 (October
10
3, 2017). In fact, as the Chief Justice said:
The main problem for me [is] . . . if the claim is allowed to proceed,
there will naturally be a lot of these claims raised around the country.
Politics is a very important driving force and those claims will be
raised. And every one of them will come here for a decision on the
merits . . . . We will have to decide in every case whether the
Democrats win or the Republicans win. So[,] it’s going to be a problem
[for the Court] across the board.
Id. at 36:24-37:10. In the end, it turns out that the Chief Justice was right.
However, claimants are not waiting for a decision in Gill or Benisek. Rather
they are moving forward based on a presumption of justiciability afforded
them by Bandemer and the invitation to search for a standard in Veith, and
to no small extent the district court’s ruling supposedly finding a “judicially
manageable standard” in Whitford v. Gill. See Bandemer, 478 U.S. 109; Veith,
541 U.S. 267; Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016). Indeed,
part of the explanation provided in the instant case for denying a stay
pending Gill was that this Court did not have a First Amendment claim
squarely pending before it. Rather than acknowledge this Court’s decision to
hear Benisek under the Jurisdiction Postponed order, the Rucho court
proceeded to issue the instant ruling prior to this Court’s consideration of
Benisek. This Court should send a message to the district courts that its
pending pronouncements should not be taken lightly by issuing a stay here.
II.
This Case Should be Stayed Because the District Courts
“None-Means-None” Approach to Partisanship in Redistricting
Cases Has Never Been Accepted by This or Any Other Court.
The three-judge court in Rucho found that “a judicially manageable
11
framework for evaluating partisan gerrymandering claims need not
distinguish an ‘acceptable’ level of partisan gerrymandering from ‘excessive’
partisan gerrymandering.” Common Cause v. Rucho, 1:16-cv-01026-WO-JEP
(MD NC 2018) (three-judge court) (memo. op.). Effectively, what the district
court is endorsing is a “none-means-none” approach to partisan redistricting
cases that has never been countenanced by this Court.2 See e.g. Baker v. Carr,
369 U.S. 186, 324 (1962) (“Apportionment battles are overwhelmingly party
or intra-party contests.”); Gaffney v. Cummings, 412 U.S. 735, 753 (1973)
(“The reality is that districting inevitably has and is intended to have
substantial political consequences.”); Bandemer, 478 U.S. at 128 (plurality
op.) (“Politics and political considerations are inseparable from districting
and apportionment.”); Vieth v. Jubelirer, 541 U.S. 267, 286 (2004) (plurality
op.) (noting that “partisan districting is a lawful and common practice . . . .”);
League of Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (acknowledging
that partisanship is a permissible factor to consider when redistricting).
In fact, partisan gerrymandering has historically and recently been
treated by this Court as a defense to racial gerrymandering claims. See
2 The Rucho district court also seemed to endorse some form of proportional
representation, which has never been permitted by this Court. See e.g. Vieth,
541 U.S. at 288 (The “standard [proposed by appellants] rests upon the
principle that groups (or at least political-action groups) have a right to
proportional representation. But the Constitution contains no such principle.
It guarantees equal protection of the law to persons, not equal representation
in government to equivalently sized groups. It nowhere says that . . .
Republicans or Democrats, must be accorded political strength proportionate
to their numbers.”).
12
Cooper, 137 S. Ct. at 1463-64 (2017) (part of proving a racial gerrymandering
claim is “demonstrating that the legislature subordinated other factors—
compactness, respect for political subdivisions, partisan advantage . . .—to
racial considerations.”) (emphasis added). Easley v. Cromartie, 532 U.S. 234,
243 (2001) (“If district lines merely correlate with race because they are
drawn on the basis of political affiliation, which correlates with race, there is
no racial classification to justify”) (quoting and citing Bush v. Vera, 517 U.S.
952, 968 (1996)). It is inconceivable for something to be a defense in the racial
gerrymandering context yet also be—if you take the Rucho courts holding at
face value—a First Amendment, Equal Protection, and Elections Clause
violation in the partisan gerrymandering context. See Common Cause v.
Rucho, Nos. 16-1026, 16-1164, slip op. at 189 (M.D.N.C. Jan. 9, 2018) (threejudge court) (memo. op.). In fact, the argument adopted by the three-judge
panel in Rucho was rejected by another three-judge panel of the Middle
District of North Carolina in June of 2016. Harris v. McCrory, 2016 U.S. Dist.
LEXIS 71853 (M.D.N.C. June 2, 2016).
a. Justice O’Connor’s Concurrence in Bandemer Correctly
Predicted the Scenario This Court Now Faces, and
Therefore the Court Should Stay this Case Pending
Appeal.
Over 40 years ago, when she wrote her concurrence in Davis v.
Bandemer, Justice O’Connor correctly predicted the quandary in which this
Court now finds itself. 478 U.S. at 144 (O’Connor, J. concurring).3 Deciding in
3 This is unsurprising since Justice O’Connor was, and is to this day, the only
13
the first instance that partisan gerrymandering claims were justiciable was
an error this court should now fix. See Citizens United v. FEC, 558 U.S. 310,
362-63 (2010) (“Our precedent is to be respected unless the most convincing
reasons demonstrates that adherence to it puts us on a course that is sure
error . . . . [The Court] also examine[s] whether ‘experience has pointed up a
precedent’s shortcomings.’”) (citing and quoting Pearson v. Callahan, 555
U.S. 223, 233 (2009)). Finding partisan gerrymandering claims justiciable
was “a momentous” step “which if followed in the future can only lead to
political instability and judicial malaise.” Bandemer, 478 U.S. at 147.
Experience has now shown that Justice O’Connor could not have been
more correct. In fact, “Federal Courts will have no alternative but to attempt
to recreate the complex process of legislative apportionment in the context of
adversary litigation in order to reconcile the competing [groups] claims . . . .”
Bandemer, 478 U.S. at 147. This is precisely the spot the district court placed
themselves in when ordering that “[n]o later than 5 p.m. on January 29,
2018, the State shall file with the Court any enacted proposed remedial
plan,” nearly all records of what the legislature will consider in creating a
remedial plan, and a list of candidates to serve as a special master. Common
Cause v. Rucho, Nos. 16-1026, 16-1164, slip op. at 189-90 (M.D.N.C. Jan. 9,
2018) (three-judge court) (memo. op.). This is nothing if not the “unwarranted
Supreme Court Justice who has actually had occasion to draw a map as a
member of a legislative body due to her position in the Arizona Senate during
the 1970’s reapportionment. See Federal Judicial Center, Sandra Day
O’Connor, https://www.fjc.gov/history/judges/oconnor-sandra-day.
14
judicial superintendence of the legislative task of apportionment.” Bandemer,
478 U.S. at 147 (O’Connor, J. concurring). More pressingly, “the fact remains
that the losing party or the losing group of legislators in every apportionment
will now be invited to fight the battle anew in federal court.” Id. It is a battle
that has been fought, is being fought, and will continue to be fought until this
Court intervenes. See e.g. Common Cause v. Rucho, Nos. 16-1026, 16-1164,
slip op. at 189 (M.D.N.C. Jan. 9, 2018) (three-judge court) (memo. op.)
(finding congressional plan violates the First Amendment, Fourteenth
Amendment, and the Elections Clause of Article 1, Section 4); Agre v. Wolf,
No. 17-4392, slip op. (E.D. Pa Jan 10, 2018) (three-judge court) (the majority
finding that a claim under the Elections Clause is either non-justiciable or
precluded by precedent, while the dissenting judge would apply a “visual”
test to strike down the map); League of Women Voters of Michigan v.
Johnson, 2:17-cv-14148-DPH-SDD ECF 1 (E.D. MI December 22, 2017)
(requesting injunctive relief under First and Fourteenth Amendment
theories); Benisek v. Lamone, 266 F. Supp. 3d 799 (Md. August 24, 2017),
docketed No. 17-333 (challenging a single district under a First Amendment
retaliation theory).4
4 The best example of this phenomena is the litigation currently ongoing in
Pennsylvania. First, a case was filed in the Pennsylvania Commonwealth
Court on June 15, 2017, on state constitutional grounds. League of Women
Voters v. Commonwealth, 261 MD 2017 (June 15, 2017). A separate yet
similar case was filed several months later in the District Court for the
Eastern District of Pennsylvania on October 2, 2017, alleging U.S.
Constitutional violations of the Elections Clause, Fourteenth Amendment,
and First Amendment. Agre v. Wolf, No. 17-4392 (E.D. Pa. October 2, 2017)
15
CONCLUSION
The judiciary is under threat from itself. We live in a representative
republican democracy and on that basis, we elect people to make decisions for
us. The United States Constitution, pursuant to Article I, Section 4,
recognizes that very fact by making the peoples representatives in the
legislatures of the States responsible for crafting reapportionment plans.
This same provision of the Constitution permits Congress to “make or alter”
restrictions on Congressional Districting, and Congress has in fact exercised
that power. See e.g. 2 U.S.C. 2c (requiring single member districts for the
House of Representatives).
“To allow district courts to strike down apportionment plans on the
basis of their prognostications . . . invites ‘findings’ on matters as to which
neither judges nor anyone else can have confidence.” Bandemer, 478 U.S. at
160 (O’Connor, J. concurring). This Court should act to prevent further
erosion of citizens’ faith in the federal judiciary.
For the aforementioned
reasons, amici States request that the Court stay this matter pending further
review.
(three-judge court), ECF No. 1. When the Agre court failed to stay and/or
abstain—despite clear precedent from this Court for them to do so—another
party moved to intervene in Agre on November 3, 2017. Agre v. Wolf, No. 174392 (E.D. Pa. November 3, 2017) (three-judge court), ECF No. 54 (the
“Diamond plaintiffs”). The motion for intervention was denied and the
Diamond plaintiffs predictably filed yet another federal lawsuit challenging
the 2011 Pennsylvania congressional apportionment on November 9, 2017,
also alleging U.S. Constitutional violations of the Elections Clause,
Fourteenth Amendment, and First Amendment. Diamond v. Torres, 5:17-cv5054 (E.D. Pa. 2017) (three-judge court), ECF No. 1. That case remains
pending, and Plaintiffs there have asked that court to determine liability in
advance of the 2018 primary elections.
16
Date: January 17, 2018
Respectfully Submitted:
Counsel of Record
Solicitor General
Office of the Attorney General
Louisiana Department of Justice
1885 N. Third St.
Baton Rouge, LA 70804
(225) 326-6766
murrille@ag.louisiana.gov
BILL SCHUETTE
Attorney General of
Michigan
ALAN WILSON
Attorney General of
South Carolina
KEN PAXTON
Attorney General of
Texas
17
No. 17A745
In the
Supreme Court of the United States
ROBERT A. RUCHO, ET Al.,
Applicants,
v.
COMMON CAUSE, ET AL.,
Respondents.
CERTIFICATE OF SERVICE
I, Elizabeth B. Murrill, a member of the Supreme Court Bar, hereby certify
that three copies of the attached Amicus Brief and Motions in support of
Applicants’ Emergency Application for Stay, filed by hand-delivery to the
United States Supreme Court, were served via Next-Day Service and on the
following parties listed below on this 17th day of January, 2018. An electronic
pdf of the Application has been sent to the following counsel via e-mail:
EMMET J. BONDURANT
BONDURANT MIXSON & ELMORE,
LLP
1201 W. Peachtree St., N.W.
Suite 3900
Atlanta, GA 30309
(404) 881-4100
bondurant@bmelaw.com
EDWIN M. SPEAS, JR.
POYNER SPRUILL, LLP
301 Fayetteville Street, Ste. 1900
Raleigh, NC 27601
(919) 783-6400
espeas@poynerspruill.com
Counsel for Common Cause, et al.
18
ALLISON JEAN RIGGS
SOUTHERN COALITION FOR
SOCIAL JUSTICE
1415 W. Hwy. 54
Suite 101
Durham, NC 27707
(919) 323-3380 ext. 117
allison@southerncoalition.org
Counsel for League of Women
Voters, et al.
PAUL D. CLEMENT
KIRKLAND & ELLIS LLP
655 Fiteenth Street, NW
Washington DC 20005
(202)879-5000
paul.clement@kirkland.com
PHILLIP J. STRACH
OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.
4208 Six Forks Road
Suite 1100
Raleigh, NC 27609
Counsel for Rucho, et al.
19
Counsel of Record
Solicitor General
Office of the Attorney General
Louisiana Department of Justice
1885 N. Third St.
Baton Rouge, LA 70804
(225) 326-6766
murrille@ag.louisiana.gov
20
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