Amicus Curiae Brief — Robert A. Rucho, et al., Applicants v. Common Cause, et al.

Supreme Court briefJan 17, 2018

Ask Donna

What actually matters in this document.

Text

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

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

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.