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

IN THE

SUPREME COURT OF THE UNITED STATES

____________

No. 17A745

____________

ROBERT A. RUCHO, ET AL.

Applicants,

v.

COMMON CAUSE, ET AL.,

Respondents.

________________________

ROBERT A. RUCHO, ET AL.

Applicants,

V.

LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA, ET AL.

Respondents.

________________________

REPLY BRIEF IN SUPPORT OF EMERGENCY APPLICATION FOR

STAY PENDING RESOLUTION OF DIRECT APPEAL TO THIS COURT

________________________

PHILLIP J. STRACH

MICHAEL D. MCKNIGHT

OGLETREE, DEAKINS,

NASH SMOAK &

STEWART, P.C.

4208 Six Forks Road

Suite 1100

Raleigh, NC 27609

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Applicants/Defendants Senator Robert Rucho, in his official capacity

as co-chair of the Joint Select Committee on Congressional Redistricting;

Representative David Lewis, in his official capacity as co-chair of the Committee;

Timothy K. Moore, in his official capacity as Speaker of the North Carolina House

of Representatives; and Philip E. Berger, in his official capacity as President Pro

Tempore of the North Carolina Senate

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

I.

There Is A Reasonable Probability That The Court Will Hold Or Review

This Case, And A Fair Prospect That The Court Will Vacate Or Reverse

The Decision Below ............................................................................................. 2

II. Applicants, The State, And Its Citizens Will Suffer Irreparable Harm

Absent A Stay, And The Balance Of Equities Favors A Stay ........................... 8

CONCLUSION............................................................................................................. 17

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

Nos. 17A225 & 17A245 (U.S.) .................................................................................. 14

Az. State Legislature v. Az. Ind. Redistricting Comm.,

135 S. Ct. 2652 (2015) .............................................................................................. 13

Benisek v. Lamone,

No. 17-333 (U.S.) ........................................................................................................ 1

Connor v. Finch,

431 U.S. 407 (1977) .................................................................................................. 12

Cooper v. Harris,

137 S. Ct. 1455 (2017) .......................................................................................... 7, 10

Covington v. North Carolina,

No. 16A646 (U.S.) ..................................................................................................... 14

Davis v. Bandemer,

478 U.S. 109 (1986) ................................................................................................ 5, 6

Gaffney v. Cummings,

412 U.S. 735 (1973) .................................................................................................. 12

Gill v. Whitford,

No. 16-1161 (U.S.) ................................................................................................ 1, 15

Harris v. McCrory,

159 F. Supp. 3d 600 (M.D.N.C. 2016) ........................................................................ 7

Hollingsworth v. Perry,

558 U.S. 183 (2010) ..................................................................................................... 7

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .................................................................................................... 5

Maryland v. King,

133 S. Ct. 1 (2012) .................................................................................................... 13

McCrory v. Harris,

No. 15A809 (Feb. 19, 2016) ...................................................................................... 10

McDaniel v. Sanchez,

452 U.S. 130 (1981) .................................................................................................. 12

Md. Comm. for Fair Representation v. Tawes,

377 U.S. 656 (1964) .................................................................................................. 12

Purcell v. Gonzalez,

549 U.S. 1 (2006) ...................................................................................................... 14

ii

Shaw v. Reno,

509 U.S. 630 (1993) .................................................................................................. 10

Vieth v. Jubelirer,

541 U.S. 267 (2004) ............................................................................................ 5, 6, 8

Wittman v. Personhuballah,

No. 15A724 (U.S.) ..................................................................................................... 10

Wittman v. Personhuballah,

136 S. Ct. 1732 (2016) .............................................................................................. 10

Statutes

N.C. Gen. Stat. §114-2 ................................................................................................. 13

N.C. Gen. Stat. §120-2.4 ................................................................................................ 9

Other Authorities

Jurisdictional Statement,

Gill v. Whitford, No. 16-1161 (U.S. Mar. 24, 2017)................................................... 2

Legislative Defs.’ Resp. to Special Master’s Draft Report,

Covington v. North Carolina, No. 15-cv-399,

(M.D.N.C. Nov. 17, 2017), ECF No. 215 .................................................................. 13

Motion to Affirm,

Benisek v. Lamone, No. 17-333 (U.S. Oct. 31, 2017) ................................................. 2

Order,

Benisek v. Lamone, No. 17-333 (U.S. Dec. 8, 2017) .................................................. 3

iii

TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE UNITED STATES AND

CIRCUIT JUSTICE FOR THE FOURTH CIRCUIT:

Respondents do not and cannot identify any legitimate justification for forcing

the General Assembly to rush to draw a new congressional map in two weeks, when

this Court is presently considering whether the partisan gerrymandering claims that

gave rise to the district court’s extraordinary demand are even justiciable. Nor can

Respondents identify any legitimate justification for denying a stay to the North

Carolina General Assembly after having already granted one to the Wisconsin

Legislature. Instead, Respondents insist that a stay is inappropriate because they

are confident that they will prevail under any standard for adjudicating partisan

gerrymandering claims. But that, of course, ignores that the threshold question in

both Gill v. Whitford, No. 16-1161 (U.S.), and Benisek v. Lamone, No. 17-333 (U.S.),

is whether there is any justiciable standard for partisan gerrymandering claims, and

that the last time the Court considered the matter, it concluded that there was none.

There is certainly a fair prospect that a majority of this Court will once again conclude

that such claims are non-justiciable, and an almost certain prospect that if the Court

announces a first-in-our-history standard, that the proper result here would be

vacatur in light of that watershed decision, rather than affirmance.

Equally important, if this Court deviates from the path that it marked out in

Gill and denies a stay here, it will fuel speculation that the Court has already decided

the threshold issue in Gill and Benisek before the latter is even argued. The clear

correct answer here is the one this Court already arrived at in Gill. A sovereign State

should not have to draw maps to comply with a constitutional standard that may not

exist or have been identified. If this Court reaffirms the non-justiciability of partisan

gerrymandering claims later this year, the tumult of drawing a new map now will

have proven completely unnecessary. And if the Court announces a new justiciable

standard, there is no reason to treat North Carolina any different from Wisconsin or

Maryland. Either way, the correct course at this juncture is for the Court to follow

the same course that it followed in Gill and grant a stay pending resolution of

Applicants’ direct appeal.

I.

There Is A Reasonable Probability That The Court Will Hold Or Review

This Case, And A Fair Prospect That The Court Will Vacate Or Reverse

The Decision Below.

Respondents make the remarkable claim that Applicants have not made “any

showing whatsoever” that they may succeed on their direct appeal because

Respondents’ partisan gerrymandering purportedly should prevail “under any

standard this Court might plausibly adopt in the pending Gill and Benisek cases.”

Common Cause (“CC”) Resp. 19; see also League Resp. 15. The first and fatal problem

with that claim is that it assumes the answer to the threshold question that is sub

judice in both Gill and Benisek — i.e., it assumes that the Court will actually identify

and adopt a standard for adjudicating partisan gerrymandering claims in one or both

of those cases. That threshold question is expressly presented in both cases and

occupied the bulk of the discussion at oral argument in Gill. See Jurisdictional

Statement i, Gill v. Whitford, No. 16-1161 (U.S. Mar. 24, 2017) (“Are partisangerrymandering claims justiciable?”); Motion to Affirm i, Benisek v. Lamone, No. 17333 (U.S. Oct. 31, 2017) (“Is the legal claim articulated by the three-judge district

2

court unmanageable and therefore non-justiciable?”). Respondents’ contention that

“no party in Gill or Benisek has asked the Court” to hold “that partisangerrymandering claims are universally nonjusticiable,” CC Resp. 19, therefore blinks

reality.

The question whether anyone has identified a judicially manageable

standard for adjudicating partisan gerrymandering claims is the proverbial $64,000

question in both cases.

Respondents alternatively suggest that this Court’s decision to hear argument

in Benisek compels the conclusion that the Court has already resolved the

justiciability question in their favor.

But there are at least three fundamental

problems with that speculative claim. First, one could just as easily draw the opposite

conclusion from the Court’s decision to hear argument in Benisek; if the Court has

already discovered the answer in Gill, then why re-ask the same threshold question

in Benisek? Second, and more concretely, it is telling that this Court did not follow

its ordinary practice of noting “probable jurisdiction” in Benisek; rather, just as in

Gill, the Court “postponed” “the question of jurisdiction … to the hearing of the case

on the merits.” Order, Benisek v. Lamone, No. 17-333 (U.S. Dec. 8, 2017). That is

doubly significant, as it underscores both that this Court is actively considering the

justiciability of partisan gerrymandering claims in both cases and that this Court is

careful to act in ways that do not presume the answer to the question under review.

Respondents’ oppositions, by contrast, depend on just such presumption. Third, and

most important, all this speculation and tea-leaf reading about what the Court has

decided or will decide is problematic and should not be encouraged. The way to end

3

such speculation and make clear that the threshold questions remain sub judice is to

treat this case just like Gill and grant a stay.

Respondents fare no better with their claim that “the ‘manageable standards’

debate presented in Gill and Benisek is largely beside the point here.” CC Resp. 20.

In essence, Respondents contend that the district court embraced such a wide variety

of theories of partisan gerrymandering that surely one of them must hit the mark.

See League Resp. 16-20. But the fact that the district court identified no fewer than

four different amorphous “standards”—two of them based on the Elections Clauses,

which no other court has found (and few have ever even suggested) is a viable source

of a constitutional constraint in this context—only underscores that the decision is

unlikely to survive appellate review no matter what this Court holds in Gill and

Benisek.1

Respondents try to escape that conclusion by emphasizing that the General

Assembly admitted that partisan advantage was one of the criteria it considered

when drawing the challenged map. See, e.g., CC Resp. 20-21. In doing so, just like

the district court, Applicants embrace the notion that intent alone—and not even sole

or predominant intent, but any intent—is enough to prove unconstitutional partisan

gerrymandering.2 But that contention is impossible to reconcile with this Court’s

1 Indeed, the League does not even embrace any of the tests that the district court espoused,

but rather claims that it is likely to prevail because it “advocated” the same test that the district court

in Gill embraced. League Resp. 16. But the League conveniently ignores the fact that the district

court in this case did not accept the League’s (or Gill’s) proposed test; it instead embraced the novel,

and even looser, test proposed by Common Cause. See Appl. App. A at 118-20.

2 The League disputes this characterization of the district court’s holding, League Resp. 18,

but in doing so it tellingly discusses only one of the four different tests that the district court embraced.

And even as to that test (the Equal Protection Clause), the League is mistaken, as the district court

made no effort to distinguish “an intent to subordinate the opposing party’s backers and to entrench

4

cases, as even the Members of this Court who are open to the notion that partisan

gerrymandering claims are justiciable have squarely rejected the notion that intent

alone is enough.

For instance, in Bandemer, the plurality accepted the district court’s finding

that the legislature engaged in “intentional discrimination against an identifiable

political group,” but nonetheless found that the plaintiffs had not made out a partisan

gerrymandering claim.

Davis v. Bandemer, 478 U.S. 109, 127 (1986).

In his

concurrence in Vieth, moreover, Justice Kennedy posited that a partisan

gerrymander that has “the purpose and effect of imposing burdens on a disfavored

party and its voters” may violate the First Amendment—not that intent to district

for partisan advantage alone is enough violate Constitution. Vieth v. Jubelirer, 541

U.S. 267, 315 (2004) (Kennedy, J., concurring) (emphasis added). And in LULAC,

Justice Kennedy reiterated that “a successful claim attempting to identify

unconstitutional acts of partisan gerrymandering must do what appellants’ solemotivation theory explicitly disavows: show a burden, as measured by a reliable

standard, on the complainants’ representational rights.” League of United Latin Am.

Citizens v. Perry, 548 U.S. 399, 418 (2006) (opinion of Kennedy, J.) (emphasis added).

Members of this Court have rejected the proposition that intent alone is enough

to prove a partisan gerrymandering claim for very good reason: because “[t]he reality

is that districting inevitably has and is intended to have substantial political

the mapmaking party in office” from “garden-variety partisan motivation.” Id. Instead, the court went

out of its way to make clear that, in its view, there is never “any legitimate” basis for districting for

partisan advantage. Appl. App. A at 84 n.16.

5

consequences.” Bandemer, 478 U.S. at 129. A test that prohibited any intent to

district for partisan advantage thus would be flatly inconsistent with the Framers’

decision to entrust districting to the legislature, because “[a]s long as redistricting is

done by a legislature, it should not be very difficult to prove that the likely political

consequences of the reapportionment were intended.” Id. Respondents cannot avoid

that problem by recasting districting for partisan advantage as “invidious

discrimination,” as the intent test that the Bandemer plurality found “should not be

very difficult to” satisfy was one that required “intentional discrimination against an

identifiable political group.” Id. at 127 (emphasis added). Respondents’ pejorative

labels and ad hominem attacks on the General Assembly thus do not advance the

legal ball at all.

Nor do their repeated efforts to analogize this case to Justice Kennedy’s

hypothetical of a state law that expressly “declared” that districts “shall be drawn so

as most to burden Party X’s rights to fair and effective representation.” CC Resp. 21

(quoting Vieth, 541 U.S. at 312). At the outset, this case involves only committee

criteria for drawing a single map, not a state statute or constitutional provision

attempting to enshrine into law a permanent map-drawing preference in favor of one

political party. Moreover, the committee did not instruct the mapdrawer to draw a

map “so as most to burden the Democratic Party’s right to fair and effective

representation.” It adopted as one of several districting criteria that “reasonable

efforts” shall be made “to maintain the current partisan makeup of North Carolina’s

congressional delegation.” Appl. App. A at 14. Making reasonable efforts to preserve

6

the existing partisan makeup of a map while also complying with traditional criteria

such as contiguity, compactness, and minimal population deviation is a far cry from

declaring that maps must be drawn “so as most to burden” explicitly identified voters’

“rights to fair and effective representation.”

Respondents echo the district court’s remarkable claim that preserving the

existing partisan makeup must have been code for drawing the most aggressive

partisan gerrymander possible because the General Assembly defended its first

attempt to draw a congressional map against a racial gerrymandering charge by

arguing that one particular district (CD12) was motivated principally by partisan

considerations, not race. See Common Cause Resp. 7-8; Appl. App. A at 108. But

Respondents seem to forget that the General Assembly lost that case because the

district court rejected that explanation of the General Assembly’s motives, concluding

that CD12 was drawn on the basis of race, not politics. See Harris v. McCrory (Harris

I), 159 F. Supp. 3d 600, 612 (M.D.N.C. 2016), aff’d sub nom. Cooper v. Harris (Harris

II), 137 S. Ct. 1455 (2017). The district court can hardly conclude that the 2011 map

was not animated by partisan interests for purposes of sustaining a racial

gerrymandering claim, then turn around and use the exact same record to claim that

the exact same map was animated by partisan interests for purposes of sustaining a

partisan gerrymandering claim.

In the end, Respondents’ efforts to resist the conclusion that there is the

requisite “fair prospect that a majority of the Court will vote to reverse the judgment

below,” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010), succeed only in confirming

7

that the district court in this case came no closer than any court before it to identifying

a “limited and precise rationale” for distinguishing permissible districting for

partisan advantage from unconstitutional partisan gerrymandering. Vieth, 541 U.S.

at 306 (Kennedy, J., concurring). There is thus certainly a fair prospect that this

Court will reverse the decision below. At a bare minimum, there is more than a fair

prospect that if the Court identifies a novel, first-in-our-history standard for

evaluating partisan gerrymandering claims, that will necessitate vacatur of the

decision below and a remand in light of Gill and Benisek. Either way, the first stay

factor is amply satisfied.

II. Applicants, The State, And Its Citizens Will Suffer Irreparable Harm

Absent A Stay, And The Balance Of Equities Favors A Stay.

Respondents have no coherent explanation for why the same irreparable

injuries and equities that warranted a stay in Gill do not warrant a stay here too.

Respondents claim that granting a stay in Gill did not necessarily preclude a remedy

for the 2018 elections because the stay was granted when the 2018 elections were still

a distant prospect. But setting aside the fact that the Gill stay remains in place

today, that argument just assumes that a remedy will be necessary, which is precisely

the question this Court has yet to resolve. Respondents also assume that Applicants’

appeal is unlikely to be resolved until next Term, but that ignores the obvious

possibility that it will be resolved by a reversal or vacatur in light of Gill and Benisek.

If this Court concludes that partisan gerrymandering claims are not justiciable, then

forcing the General Assembly to enact and implement a new map will have been for

naught. Alternatively, if the Court decides that such claims are justiciable, the Court

8

presumably not only will adopt a legal standard for lower courts to employ, but also

will give some guidance as to whether States and courts must rush to put in place

new maps and test them against that newly announced standard in time for the 2018

elections, or whether they will have a full election cycle to adjust. Either way, there

is no good reason to treat North Carolina any differently from Wisconsin and

Maryland.

That a stay is appropriate no matter how the Court resolves the threshold issue

is presumably why this Court issued a stay in Gill even though the district court’s

order did nothing more than require the legislature to draw a map to be used if and

only if this Court affirmed its decision. In other words, the Court concluded that the

Wisconsin Legislature should not be required to draw a new map at all—even on ten

months’ notice, and more than a year before the 2018 elections—unless and until this

Court has actually concluded both that partisan gerrymandering claims are

justiciable and that the challenge to Wisconsin’s map succeeded. Surely the North

Carolina General Assembly is entitled to the same protection against the same

irreparable injury. Indeed, if anything, the irreparable injury is all the more acute

here because the General Assembly has been given a mere two weeks to enact a new

map, and was ordered to do so barely a month before the filing period for the 2018

elections is set to open.3

3 Respondents’ suggestion that the General Assembly has “specifically invit[ed]” district courts

to put it in that untenable position is pure fiction. CC Resp. 29. The General Assembly enacted a law

constraining the power of the state courts to order redistricting on short notice, stating that the “period

of time” to enact a new map if a court finds a duly enacted one deficient “shall not be less than two

weeks.” N.C. Gen. Stat. §120-2.4(a) (emphasis added). That hardly amounts to an open invitation to

delay issuing decisions on the validity of maps until the eve of an election, then give the General

Assembly the absolute minimum permissible amount of time to enact a new map. Nor does the fact

9

With no answer to Gill, Respondents change the subject, insisting that this

Court should deny a stay here because it denied a stay of an equally disruptive order

in McCrory v. Harris, No. 15A809 (Feb. 19, 2016). While the fact that two three-judge

panels in a span of two years have ordered the General Assembly to draw maps on

the eve of an election cycle (and a third is poised to do the same thing any day now,

see Appl. 21 n.3) is a troubling testament to how little regard three-judge panels of

the Middle District of North Carolina apparently have for the serious sovereign

interests at stake in redistricting cases, Harris was a very different case from this

one. Most fundamentally, Harris did not involve a partisan gerrymandering claim.

It involved only a racial gerrymandering claim—a claim that this Court held

justiciable decades ago. See Shaw v. Reno, 509 U.S. 630 (1993). Moreover, there was

no claim in Harris that the ultimate disposition of the appeal would be controlled by

a case presently pending before this Court; instead, the case turned largely on

application of settled law to case-specific facts. Particularly given that this Court

ultimately affirmed, see Cooper v. Harris, 137 S. Ct. 1455 (2017), the Court’s denial

of a stay pending appeal likely had more to do with its view of the merits of longjusticiable claims than with its view of the injuries or the equities.4

Respondents are therefore reduced to embracing the district court’s

remarkable eleventh-hour suggestion—raised for the first time in the history of this

that the General Assembly has complied with such unreasonable demands when forced to do so, see

CC Resp. 29-30, deprive it of the right to challenge them when they are imposed.

4 The same can be said of Wittman v. Personhuballah, No. 15A724 (U.S.), which was also a

racial, not a partisan, gerrymandering case, and which ultimately produced a unanimous opinion

dismissing the applicants’ appeal for lack of standing. See Wittman v. Personhuballah, 136 S. Ct. 1732

(2016).

10

litigation in the court’s January 16 order denying a stay pending appeal—that

Applicants cannot claim any injury from, and do not even have any interest in, the

district court’s decision because they are legislators, rather than the State itself.

Indeed, Respondents even go so far as to chide Applicants for failing to address this

purportedly “threshold issue” in their Application. CC Resp. 24 n.4; see also CC App.

8.

If anyone should be chided here, it is Respondents, who have never once

suggested in the entirety of this litigation that Applicants—four legislators sued by

Respondents in their official capacities as the co-chairs of the Joint Select Committee

on Congressional Redistricting, the Speaker of the North Carolina House of

Representatives, and the President Pro Tempore of the North Carolina Senate—do

not even have an interest in the constitutionality of the map duly enacted by the

General Assembly. That Respondents have never raised a question about Applicants’

concrete interest in this dispute is understandable; after all, Respondents named

Applicants as defendants to their lawsuits, and spent more than a year litigating this

case against them.

The fact that the three-judge court raised this issue sua sponte is just one more

reversible error by that panel. Applicants’ concrete interest in this suit is what

allowed it to proceed, and their concrete injury from the decision below is self-evident;

after all, the district court itself ordered the General Assembly, not the State or the

State Board of Elections, to enact new maps by January 24. Appl. App. A at 189-90.

Surely Applicants have an interest in challenging an order that runs directly against

11

the institution that they represent; indeed, that is presumably why Respondents

named them as defendants in the first place. And if there is any concern that the

General Assembly itself, rather than four legislators, should have been named as a

defendant, that is a deficiency that would run to the entire litigation, including the

order under review.

In all events, Applicants have an obvious interest in protecting the sovereign

prerogatives of the General Assembly to draw districting maps. As this Court has

reiterated time and again, the “primary responsibility” for redistricting “rests” not

just with the State in the abstract, but “with the legislature” in particular. Md.

Comm. for Fair Representation v. Tawes, 377 U.S. 656, 676 (1964). Indeed, this Court

has long emphasized the primacy of the legislature in redistricting—not just because

the legislature is the body to which that task is constitutionally committed, but

because “a state legislature is the institution that is by far the best situated to

identify and then reconcile traditional state policies within the constitutionally

mandated framework.” Connor v. Finch, 431 U.S. 407, 414-15 (1977); see also, e.g.,

McDaniel v. Sanchez, 452 U.S. 130, 150 n.30 (1981) (“[R]edistricting and

reapportioning legislative bodies is a legislative task which the federal courts should

make every effort not to pre-empt.”); Gaffney v. Cummings, 412 U.S. 735, 749, 753

(1973) (observing that redistricting is “primarily a political and legislative process”).

The General Assembly itself thus suffers a distinct injury any time its duly enacted

maps are enjoined—regardless of whether those maps were drawn by a Republican-

12

led General Assembly or Democratically-led one. Cf. Az. State Legislature v. Az. Ind.

Redistricting Comm., 135 S. Ct. 2652, 2663-64 (2015).5

Moreover, the decision below injures not the just the General Assembly, but

the State and its people—interests that, contrary to Respondents’ (and the district

court’s) suggestions, North Carolina law plainly gives the General Assembly the

power and the duty to advance. Indeed, state law was recently clarified to make

crystal clear that, in cases challenging the validity of a North Carolina statute, it is

the Attorney General that must “abide by and defer to the final decision-making

authority exercised by the Speaker of the House of Representatives and the President

Pro Tempore of the Senate, as agents of the State through the General Assembly,”

not the other way around. N.C. Gen. Stat. §114-2(10), as amended by 2017 N.C. Sess.

Law 57, §6.7(m). That the Attorney General’s office has not taken a position on behalf

of the State in this litigation thus confirms nothing more than that (unlike the district

court, see CC Resp. 8) the Attorney General recognizes the validity of N.C. Gen. Stat.

§114-2(10). And it certainly does not suggest that the State shares Respondents’

extraordinary views that the principle that a State “suffers a form of irreparable

injury” whenever it “is enjoined by a court from effectuating statutes,” Maryland v.

King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J.), is a minority view that should be ignored,

The district court’s suggestion that Applicants have elsewhere disclaimed authority “to

represent the interests of the General Assembly as a whole,” CC Resp. 9, is disingenuous. As the very

document the court quoted makes clear, Applicants simply made the obvious point that they “are not

authorized to state how the entire legislature would vote on” proposed legislation. Legislative Defs.’

Resp. to Special Master’s Draft Report 5, Covington v. North Carolina, No. 15-cv-399, (M.D.N.C. Nov.

17, 2017), ECF No. 215. That hardly amounts to a concession that the Speaker of the House and the

President of the Senate cannot speak for the institutional interests of the bodies that they head.

5

13

or that States do not have any sovereign interest in their duly enacted congressional

maps because their power to enact them comes from the Constitution. CC Resp. 25.

In all events, this Court’s equitable analysis turns not just on the interests of

the parties, or those whose interests the parties are empowered to represent, but also

on the interests of the public. And the public has an obvious interest in seeing the

laws that their legislators enact enforced, and in preserving the same maps that

governed the most recent election cycle when the opening of the next election cycle is

mere weeks away. See Amicus Brief For George Holding, et al. Respondents insist

that the public’s “familiarity” with a challenged law “has never been grounds for

perpetuating it,” CC Resp. 26, but that flies in the face of this Court’s admonishment

that courts should be reluctant to disrupt settled law on the eve of an election even

when a lower court has found that law unconstitutional because doing so may “result

in voter confusion and consequent incentive to remain away from the polls.” Purcell

v. Gonzalez, 549 U.S. 1, 4-5 (2006). Indeed, that concern is presumably part of what

animated the Court’s decision to grant stays in Gill and other recent redistricting

cases. See, e.g., Abbott v. Perez, Nos. 17A225 & 17A245 (U.S.); Covington v. North

Carolina, No. 16A646 (U.S.).

Respondents alternatively claim that there is no

prospect of electoral disruption here because the General Assembly (or the district

court) could just alter the election schedule. CC Resp. 27. But the notion that the

inevitable disruption that the decision below will cause could be countered by more

disruption hardly advances Respondents’ cause.

14

Finally, Respondents’ contention that the General Assembly “has only itself to

blame” for the untenable position in which it now finds itself has no grounding in

reality. League Resp. 22. Contrary to the district court’s contention, Applicants did

not “wait[] until the eve of the trial to file their … motion” to stay the trial in light of

this Court’s actions in Gill. Memorandum Opinion Denying Mot. to Stay at 16, ECF

No. 87. They filed that motion on June 26, 2017—a mere seven days after this Court

granted a stay in Gill and set the case for argument, and after the district court had

already postponed the trial “indefinitely.” See Legislative Defs.’ Mot. to Stay, ECF

No. 74; 6/19/17 Minute Entry; Gill v. Whitford, No. 16-1161 (U.S.). It is the district

court that then waited more than two months to rule on that motion, and did not even

explain its reasons for doing so for another week and half. Order Denying Mot. to

Stay, ECF No. 85; Memorandum Opinion Denying Mot. to Stay, ECF No. 87. It is

also the district court that sua sponte (and on only one week’s notice) pushed the

original June 2017 trial date back four months, then took another three months after

the October 2017 trial to issue its opinion invalidating the congressional map. See

6/19/17 Minute Entry; Notice of Hearing, ECF No. 88; Notice of Trial Calendar, ECF

No. 89. If anyone has “chutzpah” here, League Resp. 22, it is the district court, which

not only demanded that the General Assembly enact a new map in only 14 days after

having taken months to resolve Respondents’ claims, but then gave Respondents

more than a third of the time it gave the General Assembly to enact a new map just

to respond to a stay motion. Appl. App. B at 2. Of course, all of these disputes over

who is responsible for delay are largely beside the point since even if this stay request

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arrived at the Court seven months ago, it still would have been appropriate to issue

a stay, just as this Court did in Gill seven months ago.

Ultimately, Respondents’ only real response to Applicants’ request for a stay is

to repeat the refrain of every respondent—namely, that this case is different because

they are confident they will prevail. But that just underscores the confusion and

uncertainty that will result should this Court deny a stay in this case after having

granted one in Gill, as lower courts will (at plaintiffs’ urging) take that as a sign that

this Court has already resolved the justiciability question pending in Gill and

Benisek, and as an invitation that they, too, should rush to adjudicate partisan

gerrymandering claims in advance of the rapidly approaching 2018 election cycle.

Indeed, the bare fact that Gill is pending before this Court has already ushered in a

flood of partisan gerrymandering litigation, and along with it a flood of efforts by state

and federal courts to rush to decide those claims on the eve of the 2018 elections. See,

e.g., Amicus Brief in Support of Emergency Application for Stay for the States of

Louisiana, Texas, Michigan, and South Carolina 8-10. Accordingly, the best way to

ensure that all of these cases are resolved in a fair and orderly manner is to follow

the same course here that the Court followed in Gill, and make clear that state

legislatures should not be forced to draw new maps based on novel theories of

unconstitutional partisan gerrymandering unless and until this Court concludes that

such claims are actually justiciable and identifies a standard for adjudicating them.6

6 Respondents urge this Court to set this case for expedited briefing and argument if it is

inclined to grant a stay. See CC Resp. 3, 33. While Applicants continue to believe that holding this

case for resolution of Gill and Benisek is the more logical way to proceed given the high likelihood of

reversal or vacatur in light of one of those cases, if this Court really wants to add yet another partisan

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CONCLUSION

For the foregoing reasons, Applicants respectfully request that this Court

grant this emergency application for a stay of the district court’s order pending

resolution of Applicants’ direct appeal of that order. Given the January 24, 2018,

deadline the district court has imposed for the General Assembly to enact a new

congressional districting map, Applicants further request that, if possible, the Court

rule on this application by January 22, 2018.

Respectfully submitted,

PHILLIP J. STRACH

MICHAEL D. MCKNIGHT

OGLETREE, DEAKINS,

NASH SMOAK &

STEWART, P.C.

4208 Six Forks Road

Suite 1100

Raleigh, NC 27609

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Applicants/Defendants Senator Robert Rucho, in his official capacity

as co-chair of the Joint Select Committee on Congressional Redistricting;

Representative David Lewis, in his official capacity as co-chair of the Committee;

Timothy K. Moore, in his official capacity as Speaker of the North Carolina House

of Representatives; and Philip E. Berger, in his official capacity as President Pro

Tempore of the North Carolina Senate

January 18, 2018

gerrymandering case to its merits docket this Term, Applicants will certainly oblige. That said,

Respondents’ suggestion that the Court should force the General Assembly to draw a new “contingent”

map in the meantime even if it follows that course should be rejected out of hand, as it would result in

different treatment of this case and Gill and magnify the uncertainty and confusion that the decision

below creates.

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