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

No. 18-422

In The

Supreme Court of the United States

ROBERT RUCHO, ET AL.,

V.

Appellants,

COMMON CAUSE, ET AL.,

Appellees.

On Appeal from the United States District Court

for the Middle District of North Carolina

AMICUS BRIEF OF THE REPUBLICAN NATIONAL

COMMITTEE AND THE NATIONAL REPUBLICAN

CONGRESSIONAL COMMITTEE IN SUPPORT

OF APPELLANTS

Jason Torchinsky

Counsel of Record

Dennis W. Polio

HOLTZMAN VOGEL

JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808

(540) 341-8809 (Fax)

Jtorchinsky@hvjt.law

Dwpolio@hvjt.law

J. Justin Riemer

Chief Counsel

Republican National

Committee

310 First Street, SE

Washington, D.C. 20003

(203) 863-8500

P. Christopher Winkelman

General Counsel

National Republican

Congressional Committee

320 First Street, SE

Washington, DC 20003

(202) 479-7000

(202) 484-2543

Counsel for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

TABLE OF CONTENTS

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

STATEMENT OF INTEREST OF AMICI

CURIAE ............................................................... 1

INTRODUCTION ....................................................... 2

ARGUMENT ............................................................... 2

I.

ELECTORAL UPSETS UNDER

MAPS JUDICIALLY DETERMINED

TO BE “VOTER-PROOF” ............................. 6

a.

b.

c.

d.

e.

f.

II.

The 1980’s............................................. 6

The 1990’s........................................... 10

The 2000’s........................................... 12

The 2010’s........................................... 13

Other Examples ................................. 18

Judicial Elections Predictions

Have Not Yet Been Accurate ............. 20

VOTER PREFERENCE IS NOT

IMMUTABLE ............................................. 20

III. PARTISAN GERRYMANDERING

CLAIMS ARE NOT JUSTICIABLE .......... 33

CONCLUSION .......................................................... 36

ii

TABLE OF AUTHORITIES

CASES

Ariz. State Leg. v. Ariz. Indep. Redistricting

Comm'n, 135 S. Ct. 2652 (2015)......................... 3

Badham v. March Fong Eu, 694 F. Supp. 664

(N.D. Cal. 1988) ................................................ 10

Bandemer v. Davis, 603 F. Supp. 1479

(S.D. Ind. 1984) ............................................... 6, 7

Common Cause v. Rucho, 279 F. Supp. 3d 587

(M.D.N.C. 2018) .............................................. 3, 4

Common Cause v. Rucho, 318 F. Supp. 3d 777

(M.D.N.C. 2018) .............................................. 4, 5

Davis v. Bandemer, 474 U.S. 991 (1985) .................... 7

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

Gill v. Whitford, 138 S. Ct. 1916 (2018) ... 4, 13, 14, 34

League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006)................................ 34

League of Women Voters of Mich. v. Johnson,

No. 2:17cv14148 (E.D. Mich. filed Dec.

22, 2017) ............................................................ 17

League of Women Voters of Pa. v.

Commonwealth, 175 A.3d 282

(Penn. 2018) ................................................ 15, 16

iii

Pope v. Blue, 809 F. Supp. 392

(W.D.N.C. 1992) .......................................... 10, 11

Republican Party of N.C. v. N.C. State Bd. of

Elections, 27 F.3d 563 (4th Cir. 1994) ............. 18

Republican Party v. Hunt, 77 F.3d 470

(4th Cir. 1996) ............................................. 18, 19

Republican Party v. Hunt, 841 F. Supp. 722

(E.D.N.C. 1994) ..................................... 18, 19, 20

Turzai v. Brandt, 139 S. Ct. 445 (2018) ................... 15

Vieth v. Jubelirer, 541 U.S. 267 (2004) ............ passim

Whitford v. Gill, 218 F. Supp. 3d 837 (W.D.

Wis. 2016) ......................................... 5, 14, 31, 32

OTHER AUTHORITIES

Aaron Bycoffe and Nate Silver, Tracking

Congress In The Age Of Trump, 115th

Congress, FIVETHIRTYEIGHT,

https://projects.fivethirtyeight.com/

congress-trump-score/ (last accessed Jan.

30, 2019) ............................................................ 22

Anne Hazard, STATES NEWS SERVICE (Nov. 11,

1988) .................................................................... 9

Associated Press, Key Races State By State, At

A Glance (Nov. 6, 1986, PM cycle) ..................... 8

iv

Alan Blinder, Is Government Too Political?, 76

FOREIGN AFFAIRS 115 (1997) .............................. 2

Brief of Amicus Curiae, The National

Republican Congressional Committee in

Support of Appellants, Gill v. Whitford,

No. 16-1161 at 41-55 (Aug. 4, 2017)................. 32

David Leip, Atlas of U.S. Presidential

Elections ............................................................ 22

David Nir, Daily Kos Elections’ Presidential

Results by Congressional District for the

2016 and 2012 Elections, DAILY KOS

(NOV. 19, 2012) .................................................. 23

David Wasserman, Purple America Has All

But Disappeared, FIVETHIRTYEIGHT

(Mar. 8, 2017).................................................... 22

David Weigel, Democrats flip traditionally

conservative Wisconsin senate seat,

kicking off 2018 election season, CHICAGO

TRIBUNE (Jan. 17, 2018) ................................... 15

Doug Richardson, Democrats Celebrate Gains

in Congress, State Legislature, THE

ASSOCIATED PRESS (Nov. 5, 1986)....................... 8

Electoral Continuity and Change, 1868-1996,

Electoral Studies, 1998,

Larry Bartels .................................. 26, 27, 28, 31

v

James Adams, et al., Do Moderate Voters

Weigh Candidates’ Ideologies? Voters’

Decision Rules in the 2010 Congressional

Elections, UNIVERSITY OF CALIFORNIA,

DAVIS (Dec. 12, 2013)........................................ 25

James L. Sundquist, Dynamics of the Party

System: Alignment and Realignment of

the Political Parties 4 (Brookings

Institution Press 2011) ............................... 21, 31

Kyle Kondik, House 2020: The new crossover

districts, RASMUSSEN REPORTS (Nov. 29,

2018) .................................................................. 23

Lydia Saad, Conservative Lead in U.S.

Ideology Is Down to Single Digits,

GALLUP (Jan. 11, 2018)..................................... 26

Michael A. Bailey and Elliott B. Fullmer,

Balancing in the U.S. States, 1978-2009,

Vol. 11, No. 2 State Politics & Policy

Quarterly 158 (2011) ........................................ 24

Michael Orekes, The 1990 Elections: The

Future - Redistricting; Elections

Strengthen Hand of Democrats In '91

Redistricting, THE NEW YORK TIMES

(Nov. 8, 1990) ...................................................... 9

Nate Cohn, Josh Katz, Sarah Almukhtar, and

Matthew Bloch, Pennsylvania Special

Election Results: Lamb Wins 18th

Congressional District (Apr. 26, 2018) ............ 16

vi

Nathaniel Rakich, Election Update: The Swing

District Showdown, FIVETHIRTYEIGHT

(Sep. 12, 2018) .................................................. 22

National Conference of State Legislatures,

Partisan composition of State

Legislatures 1990-2000,

http://www.ncsl.org/documents/statevote/

legiscontrol_1990_2000.pdf (accessed

Feb. 2, 2018)................................................ 28, 29

National Conference of State Legislatures,

2010 Post-Election Party Control of State

Legislatures, http://www.ncsl.org/

research/elections-and-campaigns/2010-p

ostelection-control-of-legislatures.aspx

(accessed Feb. 2, 2018) ..................................... 30

Office of Governor Tom Wolf, Governor Wolf

Sets Special Election For Pennsylvania’s

18th Congressional District (Oct. 23,

2017) .................................................................. 16

Paul S. Herrnson and James M. Curry, Issue

Voting and Partisan Defections in

Congressional Elections, vol. 36, no. 2

LEGISLATIVE STUDIES QUARTERLY 281,

282-83 (2011) .............................................. 24, 25

Rick Gladstone, Democrats Gain Strategic

Victories In State Legislatures, THE

ASSOCIATED PRESS (Nov. 9, 1988, PM

Cycle) ................................................................... 9

vii

Rob Griffin, Ruy Teixeira, and William H.

Frey, Report: America’s Electoral Future,

Demographic Shifts and the Future of the

Trump Coalition, BROOKINGS (Apr. 19,

2018) .................................................................. 26

Sean McMinn, Where The Suburbs Moved Left

— And How The Shift Swung Elections,

NPR (Nov. 27, 2018) ......................................... 23

Samuel Latham Grimes, Without Favor,

Denial, or Delay: Will North Carolina

Finally Adopt the Merit Selection of

Judges, 76 N.C. L. Rev. 2266 (1998) .......... 18, 19

Schuck, The Thickest Thicket: Partisan

Gerrymandering and Judicial Regulation

of Politics, 87 Colum. L. Rev. 1325, 1365

(1987) ................................................................ 34

Tara Golshan, Democrats just won a Wisconsin

special election Scott Walker didn’t want

to have, VOX (June 13, 2018) ........................... 14

Wisconsin Elections Commission, 2018 Fall

General Election Results,

https://elections.wi.gov/elections-voting/r

esults/2018/fall-general (accessed Feb. 3,

2019) .................................................................. 14

1

STATEMENT OF INTEREST OF AMICI

CURIAE1

Amici curiae are political committees that assist

their Republican members achieve electoral

victories. The Republican National Committee

(“RNC”) manages the Republican party’s business at

the national level, supports Republican candidates

and state parties, coordinates fundraising and

election strategy, and develops and promotes the

national Republican platform. The National

Republican Congressional Committee (“NRCC”)

supports the election of Republicans to the United

States House of Representatives by providing direct

financial contributions, technical and political

guidance, and by making independent expenditures

to advance political campaigns. The NRCC also

undertakes voter education, registration, and

turnout programs, as well as other party-building

activities.

Amici curiae have a vital interest in the law

regarding redistricting since congressional districts

and legislative redistricting directly impact their

members, members’ constituents, campaigns,

elections, and their successors in office. Accordingly,

the district court’s ruling has widespread

implications for Amici curiae and their members.

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. Letters from the parties consenting

to the filing of amicus briefs are filed with the clerk.

2

INTRODUCTION

This case presents a fundamental question as to

the extent to which the federal judiciary should be

engaged in reviewing the constant and ongoing

political system that shapes how political parties

struggle to gain, regain, and control majorities in the

United States House of Representatives and in state

legislatures. The Plaintiffs below urge the Court to

action in order to “take the politics out” of what is

inherently a political process. Plaintiffs are wrong.

As one well-known Democratic professor and

economist once wrote, “[i]t is, of course, neither

possible nor desirable to depoliticize government.

Policymaking in a democracy must be political – that

is, legitimized by popular support rather than by

technical analyses. And American democracy, in

particular, was designed to be messy and

frustrating.” Alan Blinder, Is Government Too

Political?, 76 FOREIGN AFFAIRS 115 (1997).

This Court should decline the invitation to insert

the federal judiciary into questions asking which

districting plans, duly enacted by state legislatures,

are too political, based upon assessments of

conflicting opinions of political scientists and

prognosticators attempting to predict the future

behavior of American voters.

ARGUMENT

On January 9, 2018 a three-judge panel in the

United States District Court for the Middle District

of North Carolina determined that North Carolina’s

2016 Congressional Redistricting Plan (“2016 Plan”)

constitutes a partisan gerrymander in violation of

3

the First Amendment, the Equal Protection Clause

of the Fourteenth Amendment, and Article I,

Sections 2 and 4 of the United States Constitution.

Common Cause v. Rucho, 279 F. Supp. 3d 587

(M.D.N.C. 2018). In doing so, that court determined,

inter alia, that partisan gerrymandering claims are

justiciable and divined its own standards for

adjudicating

such

claims.

Id.

at

619-36

(justiciability);

id.

at

636-38

(Fourteenth

Amendment); id. 672-75 (First Amendment); id. at

683-84 (Article I).

The foundation of the district court’s initial

opinion, and that supporting its justiciability

determination and all of its new legal standards, is

that any partisan intent in redistricting essentially

creates “voter-proof” maps; that regardless of voters’

sentiment they will be unable to overcome the

partisan intent of map drawers. See id. at 612-15; id.

at 619 (“partisan gerrymandering violates the core

principle of republican government . . . that the

voters should choose their representatives, not the

other way around.” (citing Ariz. State Leg. v. Ariz.

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677

(2015) (internal quotation marks omitted); Common

Cause, 279 F. Supp. 3d at 597 (“The Republicancontrolled North Carolina General Assembly

expressly directed the legislators and consultant

responsible for drawing the 2016 Plan to rely on

‘political data’ . . . to draw a districting plan that

would ensure Republican candidates would prevail in

the vast majority of the state's congressional

districts.”) (emphasis added); id. at 620-21 (“A

partisan gerrymander that is intended to and likely

has the effect of entrenching a political party in

power undermines the ability of voters to effect

4

change when they see legislative action as infringing

on their rights.”); id. at 635-36; id. at 640 (“a wealth

of evidence proves the General Assembly's intent to

‘subordinate’ the interests of non-Republican voters

and ‘entrench’ Republican domination of the state's

congressional delegation.) (emphasis added); id. at

640 (“the Partisan Advantage criterion reflects an

express intent to entrench the Republican

supermajority in North Carolina's congressional

delegation by seeking to ‘maintain’ the partisan

make-up of the delegation achieved under the

unconstitutional 2011 Plan”); id. at 641-50 (relying

on computer modeling which, among other issues,

“assumed that the candidate does not matter . . . .”);

id. at 650, 656-58, 679-80, 686-87; id. at 688-90 (“the

2016 Plan amounts to a successful effort by the

General Assembly to disfavor a class of candidates

and dictate electoral outcomes.”) (internal citations

and quotation marks omitted); et seq.

Eventually on appeal, the Court vacated the

judgment of the district court, and remanded the

case for further consideration in light of the Court’s

decision in Gill v. Whitford, 138 S. Ct. 1916 (2018).

On remand, the district court determined, inter alia,

that Gill did not affect the justiciability of Plaintiffs’

claims. Common Cause v. Rucho, 318 F. Supp. 3d

777, 779, 814 (M.D.N.C. 2018). This opinion

similarly rested on the conclusion that partisan

redistricting creates voter-proof maps. See, e.g., id.

at 814 (“the 2016 Plan violates Article I by . . .

interfering with the right of ‘the People’ to choose

their Representatives.”); id. at 821-27 (discussing the

various congressional districts and whether they are

“winnable for Democratic candidates”) (internal

quotation marks and citations omitted); id. at 829-30

5

(crediting testimony discussing that “only three

[congressional] districts would elect Democrats and

the others will not be able to elect Democrats . . . .”)

(internal quotations and alterations omitted); id. at

830-31 (crediting testimony of constitutional injuries

due to “skewed” electoral “outcomes”); id. at 938

(discussing how the 2016 Plan “entrenched

Republicans candidates in power.”); et. seq.

Shortly thereafter, Appellants-Defendants filed

their jurisdictional statement challenging, inter alia,

whether Plaintiffs’ partisan gerrymandering claims

are justiciable. On January 4, 2019, this court

postponed further consideration of the question of

jurisdiction and set argument for the March 2019

session.

The district court’s rationale, and indeed that of

every district court which has ruled partisan

gerrymandering claims to be justiciable in practice,

is deeply flawed for at least one fundamental reason:

it rests on the presumption that the maps at issue

are politically “voter-proof.” Every judicial decision

to the contrary in the last 35 years has proven

wrong. This is because “partisan intent” in map

drafting cannot overcome the will of the voters due

to shifting voter attitudes and the realities of

political campaigns and political environments.

Essentially, “[t]he assumption underlying [these

plaintiffs’ cases] is that party affiliation is a readily

discernable characteristic in voters and that it

matters above all else in an election.” Whitford v.

Gill, 218 F. Supp. 3d 837, 936 (W.D. Wis. 2016)

(Griesbach, J., dissenting). However, “[p]arty

affiliation is not set in stone or in a voter’s genes. . .”

id. This mutability is precisely the reason that

partisan

gerrymandering

claims

cannot

be

6

justiciable. See Davis v. Bandemer, 478 U.S. 109, 160

(1986) (O’Connor, J. concurring).

I. ELECTORAL UPSETS UNDER MAPS

JUDICIALLY DETERMINED TO BE

“VOTER-PROOF”

The history of redistricting litigation is wrought

with examples of courts getting it wrong. Time and

time again courts have determined electoral maps to

be unconstitutional partisan gerrymanders due to

those maps’ effect of “entrenching” a political party

in power and then subsequently, under those same

maps, the supposedly “entrenched” party was

defeated, sometimes in spectacular fashion. This

history demonstrates that partisan gerrymandering

should not be a justiciable claim because the

judiciary is not suited to examine such issues.

a. The 1980’s

Davis v. Bandemer involved the 1981

redistricting of the Indiana state legislature. 478

U.S. at 109. At the time the 1981 plan was enacted

the Governor was a Republican and majorities in

both the State House and State Senate were

Republican. Id. Several Indiana Democrats filed suit

alleging that the 1981 plan “constituted a political

gerrymander intended to disadvantage Democrats”

in violation of the Equal Protection Clause of the

Fourteenth Amendment. Id. at 115. A divided threejudge court held that the reapportionment was

unconstitutional and enjoined state officers from

holding elections pursuant to the 1981 plan.

Bandemer v. Davis, 603 F. Supp. 1479, 1495-96 (S.D.

7

Ind. 1984). Specifically, the district court indicated

that the plan contained “a built-in bias favoring the

majority party, the Republicans” who made efforts to

“insulate itself from risk of losing its control of the

General Assembly.” Id. at 1486, 1488. Similar to the

district court in the present case, the Bandemer

district court seemed to indicate that the plan was

intended to proscribe and would result in a

“predestined

outcome”

and

“predictable

disadvantaging effect[s] . . .” Id. at 1492, 1494.

The Court subsequently stayed the judgment of

the district court, Davis v. Bandemer, 474 U.S. 991

(1985), and reversed the judgment of the district

court. 478 U.S. 109. In doing so, a majority of the

Court,

however,

did

hold

that

partisan

gerrymandering cases were justiciable in theory. Id.

The Bandemer plurality determined that it is

necessary for a plaintiff to “prove both intentional

discrimination against an identifiable political group

and an actual discriminatory effect on that group.”

478 U.S. at 127. The Bandemer plurality

acknowledged that “[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. at 129.

Recognizing that redistricting is an inherently

political process, the Bandemer plurality rejected the

notion that unconstitutional discriminatory effect

could be shown by “the mere fact that a particular

apportionment scheme makes it more difficult for a

particular group in a particular district to elect the

representatives of its choice.” Id. at 131. Instead, the

plurality ruled that discriminatory effect in political

gerrymandering cases would only be found “when

the electoral system is arranged in a manner that

8

will consistently degrade a voter's or a group of

voters’ influence on the political process as a whole.”

Id. at 132 (emphasis added). The plurality held that

a plaintiff group must prove “a history (actual or

projected) of disproportionate results” in conjunction

with indicia that the group has “essentially been

shut out of the political process.” Id. at 139

(emphasis added).

Justice O’Connor, joined by Chief Justice Burger

and Justice Powell, in her concurrence wisely took

issue with the majority’s justiciability determination

regarding the political question issue. Id. at 144.

Specifically, she took issue with the same elemental

problems Amici Curiae take issue with here: factual

questions concerning electoral success are impossible

for anyone, let alone the judiciary to determine to a

degree of certainty. Id. at 156-60.

The Bandemer plurality eventually held that the

results of a single election were insufficient to

establish discriminatory effect.

Indiana’s subsequent elections, therefore, were

conducted under the map previously declared

unconstitutional by the Bandemer district court.

During the 1986 General Assembly election, this

“predestined” and “predictable” map yielded

Democrats an increased share of the State House

from 39 Democrats and 61 Republicans to 48

Democrats and 52 Republicans. Doug Richardson,

Democrats Celebrate Gains in Congress, State

Legislature, THE ASSOCIATED PRESS (Nov. 5, 1986);

The Associated Press, Key Races State By State, At A

Glance (Nov. 6, 1986, PM cycle). Indiana’s 1988

General Assembly election was also conducted under

the same map and in that year, Democrats increased

their electoral share in the State House, resulting in

9

an even 50 Democrat and 50 Republican split, and

increased their share of the State Senate from 20

Democrats and 30 Republicans to 24 Democrats and

26 Republicans. Anne Hazard, STATES NEWS SERVICE

(Nov. 11, 1988); see also Rick Gladstone, Democrats

Gain Strategic Victories In State Legislatures, THE

ASSOCIATED PRESS (Nov. 9, 1988, PM Cycle).2 In

1990, the last election under the 1981 plan,

Democrats took control of the State House with 52

Democrats and 48 Republicans. The map, despite a

district court’s predetermination that it favors

Republicans, ultimately did not have the electoral

consequences of being politically voter-proof.

The circumstances surrounding Bandemer show

exactly why partisan gerrymandering claims should

be nonjusticiable. In order to have a valid claim,

litigants must prove that “the electoral system is

arranged in a manner that will consistently degrade

a voter's or a group of voters’ influence on the

political process as a whole.” Bandemer, 478 U.S. at

2 While Bandemer concerned legislative redistricting, the 1981

plan’s congressional districts are another great example of

voter volatility. See Michael Orekes, The 1990 Elections: The

Future - Redistricting; Elections Strengthen Hand of Democrats

In '91 Redistricting, THE NEW YORK TIMES (Nov. 8, 1990)

(“[E]ven lawmakers’ best efforts at gerrymandering can have

unintended results. In Indiana in 1981 the Republicans had

control over drawing district lines, and they set out to oust as

many Democrats as possible when national reapportionment

cost the state a Congressional seat. But in their zeal the map

makers apparently spread the Republican support too thin. In

1980 seven Democrats and four Republicans represented

Indiana in Congress. In the first election after redistricting, in

1982, the breakdown was five and five. But in the Congress

that convenes next January, the Indiana delegation will be

eight Democrats and only two Republicans.”).

10

132 (emphasis added). It is impossible for any

litigant to sufficiently meet the discriminatory effect

prong because it is impossible to make completely

accurate future projections of disproportionate

election results. See also Badham v. March Fon Eu,

694 F.Supp. 664, 670 (N.D. Cal. 1988) (three judge

panel) sum. aff’d (citing a district court’s refusal to

referee a dispute over projected disproportionate

election results.). See also id. at 672-73 (rejecting

Republicans’ challenge to California redistricting

plan because Republicans were still able to exercise

some political power.).

b. The 1990’s

In Pope v. Blue, 809 F. Supp. 392 (W.D. N.C.)

sum. aff'd, 506 U.S. 801 (1992) (mem.), the

Republican Party of North Carolina and a group of

voters brought an action challenging the State of

North Carolina's federal congressional redistricting

plan (“1992 Plan”) as a partisan gerrymander in the

United States District Court for the Western District

of North Carolina. While the three-judge Pope

district court seemed to doubt that it would be

possible

for

the

plaintiffs

to

corroborate

discriminatory effect under Bandemer, it assumed

for purposes of the motion to dismiss, i.e. taking the

allegations of the complaint as true, “that the

plaintiffs could, theoretically, prove that the [1992

Plan] would establish a ‘projected history’ of

disproportionate

results.”

Id.

at

396-97.3

3 As the Pope district court succinctly stated, “[t]he gravamen of

the plaintiffs’ action is that the [1992] Plan adopted by the

Democratic legislature will result in disproportionately high

representation for the Democratic Party in the state's

11

Nonetheless, the district court dismissed the case for

failure to state a claim because it found the

plaintiffs’ claims failed under the second prong of the

Bandemer test for discriminatory effect—plaintiffs

did not allege that the state's redistricting plan had

caused them to be shut out of the political process

and plaintiffs could not make the showing that they

had been consistently degraded in their participation

of the political process as a whole, not just in the

process of redistricting. Id. at 396-97. Accordingly,

the subsequent congressional elections in North

Carolina were held under the 1992 Plan which was

allegedly politically gerrymandered to favor

Democrats.

Despite the Pope plaintiffs’ claims, and the Pope

district court’s holding that those plaintiffs could

theoretically prove a projected history of

disproportionate electoral results, the voters of

North Carolina did not vote as “projected” under the

1992 Plan. At the time of the Pope litigation

Democrats controlled 8 congressional seats and

Republicans controlled 4 congressional seats in

North Carolina. In the very next election in 1994,

Democrats won only 4 congressional seats and

Republicans won 8 under the exact same plan.

During the following election in 1996, North

Carolina voters elected 6 Democrats and 6

Republicans to Congress. In 1998 and 2000, North

Carolina elected 7 Republicans and 5 Democrats to

Congress. None of the parties to Pope v. Blue, nor

the district court, accurately predicted how the

congressional delegation.” Pope, 809 F. Supp. at 396 (emphasis

added).

12

voters of North Carolina

subsequent elections.

would

behave

in

c. The 2000’s

Then came Vieth v. Jubelirer, 541 U.S. 267

(2004), in which a group of registered Democrats

challenged

Pennsylvania’s

congressional

redistricting plan as an unconstitutional partisan

gerrymander in violation of Article I and the

Fourteenth Amendment. The Vieth plurality,

composed of Chief Justice Rehnquist, and Justices

Scalia, O’Connor, and Thomas, determined that

partisan

gerrymandering

claims

present

a

nonjusticiable question and would overturn

Bandemer. Specifically, the Vieth plurality held that,

inter alia, it was impossible to determine the effects

of partisan gerrymandering. Id. at 287 (plurality).

[A] person's politics is rarely as readily

discernible--and never as permanently

discernible--as a person's race. Political

affiliation is not an immutable characteristic,

but may shift from one election to the next;

and even within a given election, not all

voters follow the party line. We dare say

(and hope) that the political party which

puts forward an utterly incompetent

candidate will lose even in its registration

stronghold. These facts make it impossible to

assess

the

effects

of

partisan

gerrymandering, to fashion a standard for

evaluating a violation, and finally to craft a

remedy.

13

Id. (plurality) (citing Bandemer, 478 U.S. at 156

(O'Connor, J., concurring in judgment).

With the challenge to Pennsylvania’s

congressional

plan

defeated,

Pennsylvania’s

subsequent congressional elections were held under

it. At the time of Vieth in 2004, Pennsylvania had 12

Republican members of Congress and 7 Democratic

members of Congress. During the 2006 elections,

just one election cycle after the Vieth plaintiffs and

the dissenting members of the Court would have

struck the plan as unconstitutional because, inter

alia, it served to heavily favor and entrench

Republicans, Democrats won 11 congressional seats

and Republicans won only 8 congressional seats. In

2008, only 4 years after Vieth, Democrats increased

their share of the Pennsylvania congressional

delegation to 12 Democrats and 7 Republicans.

Justice Scalia could not have been more right.

d. The 2010’s

In 2015, a group of Democratic citizens of

Wisconsin challenged that state’s legislative

redistricting plan passed in 2012, (“Act 43”) as a

partisan gerrymander in violation of the First and

Fourteenth Amendments. Gill v. Whitford, 138 S. Ct.

1916, 1924 (2018). In November, 2016, a three-judge

panel of the United States District Court for the

Western District of Wisconsin agreed, enjoining the

defendants from using the Act 43 map in future

elections and ordered them to enact a remedial

districting plan. The district court supported its

determination with testimony and expert reports of

political scientists who testified that their

calculations demonstrated that Act 43 did not yield a

14

change in Republican-held seats even in hypothetical

wave elections that most favorably favor Democrats,

and that Republicans will be heavily favored “for the

lifetime of the plan.” Whitford, 218 F. Supp. 3d at

860, 898-910. The district court also referred to Act

43 as “lock[ing]-in” Republican victories, id. at 886,

and “maintain[ing] a comfortable majority” for

Republicans in the legislature. Id. at 895. The

district court essentially found that it was impossible

for Democrats to ever win more than their thenexisting current share of the legislature under that

plan. Id. 860, 886, 895, 898-910.

The defendants appealed directly to the Court,

which, after staying the district court’s judgment,

137 S. Ct. 2289, (2017), reversed on standing

grounds. Gill v. Whitford, 138 S. Ct. 1916 (2018).

Accordingly, the map remained in place despite

plaintiffs’ experts testifying that Democrats will not

be electorally successful given the composition of the

current districts.

However, despite the dire predictions in expert

testimony by political scientists and findings by the

district court, Wisconsin Democrats have fared well

in recent elections. In June 2018, a Democrat won a

special election in northeastern Wisconsin’s First

Senate District, which voted for Republican Donald

Trump by a significant 17-point margin in the 2016

presidential election. Tara Golshan, Democrats just

won a Wisconsin special election Scott Walker didn’t

want

to

have,

VOX

(June

13,

2018),

https://www.vox.com/2018/6/12/17455922/wisconsinspecial-elections-results-june. In January 2018,

Democrats flipped a rural state senate district,

which Donald Trump carried by 17 points, with a

comfortable 10-point margin of victory. David

15

Weigel, Democrats flip traditionally conservative

Wisconsin senate seat, kicking off 2018 election

season, CHICAGO TRIBUNE (Jan. 17, 2018),

https://www.chicagotribune.com/news/nationworld/p

olitics/ct-wisconsin-state-senate-election-20180116story.html. Further, during the 2018 general election

Democrats flipped an additional state assembly seat.

Wisconsin Elections Commission, 2018 Fall General

Election Results, https://elections.wi.gov/electionsvoting/results/2018/fall-general (accessed Feb. 3,

2019).

In 2018 a smorgasbord of legal challenges to

Pennsylvania’s 2011 congressional redistricting plan

(“2011 Plan”), in both state and federal court,

culminated in a fractured Supreme Court of

Pennsylvania

striking

the

2011

Plan

as

unconstitutional

under

the

Pennsylvania

Constitution. League of Women Voters of Pa. v.

Commonwealth, 175 A.3d 282 (Penn. 2018), cert.

denied, Turzai v. Brandt, 139 S. Ct. 445 (2018).

Specifically, the majority of that court agreed with

the plaintiffs and determined that the 2011 Plan

violated Article I, Section 5 — the Free and Equal

Elections Clause — of the Pennsylvania Constitution

because, inter alia, “Republicans’ advantage is

nearly impossible to overcome” and Democrats’ “have

been denied any ‘realistic opportunity to elect

representatives of their choice . . . .’” League of

Women Voters v. Commonwealth, 178 A.3d 737, 766

(Penn. 2018) (emphasis added) (quoting plaintiffs’

Petition for Review at ¶¶ 118-19) cert. denied,

Turzai v. Brandt, 139 S. Ct. 445 (2018). The court

enjoined the 2011 Plan’s further use with the very

notable exception of the March 13, 2018 special

election for Pennsylvania’s 18th Congressional

16

District, which was to be conducted under the 2011

Plan. League of Women Voters of Pa., 175 A.3d at

284; League of Women Voters, 178 A.3d at 741, n. 7.

Pennsylvania’s 18th Congressional District was

held by a Republican since 2003, who consistently

carried the district with at least 58 percent of the

vote. Once that congressman retired, a special

election was called for March 13, 2018 in order to fill

the seat until the 2018 general election. Office of

Governor Tom Wolf, Governor Wolf Sets Special

Election For Pennsylvania’s 18th Congressional

District (Oct. 23, 2017), https://www.governor.pa.gov/

governor-wolf-sets-special-election-pennsylvanias18th-congressional-district/.

The

Democratic

candidate, Conor Lamb, won the March 13 special

election with 49.8 percent of the vote. Nate Cohn,

Josh Katz, Sarah Almukhtar, and Matthew Bloch,

Pennsylvania Special Election Results: Lamb Wins

18th Congressional District (Apr. 26, 2018),

https://www.nytimes.com/interactive/2018/03/13/us/e

lections/results-pennsylvania-house-special-election.

html?mtrref=www.google.com&gwh=E7A203251FB

D534ADB47DC7C979325A7&gwt=pay. This very

district was used as an example by plaintiffs’ experts

and credited by the Supreme Court of Pennsylvania,

as a district in which it was “impossible” for

Democrats to overcome Republican’s political

“advantage.” League of Women Voters, 178 A.3d at

766 (quoting plaintiffs’ Petition for Review at ¶¶

118-19; id. at 764 n. 26; id. at 760-61; id. at 773

(crediting the testimony of Dr. Jowei Chen); id. at

788; et. seq. Despite the omnipotence and electoral

certainty proffered by plaintiffs’ experts, and the

Pennsylvania courts, the Pennsylvania 18th

17

congressional district was unexpectedly won by a

Democrat.

In December 2017, a group of Michigan voters

and the League of Women Voters of Michigan

brought a suit challenging Michigan’s 2011

congressional and state legislative maps as

unconstitutional political gerrymanders under the

First and Fourteenth Amendments. League of

Women Voters of Mich. v. Johnson, 2:17cv14148

(filed Dec. 22, 2017) (hereinafter “Compl.”). In their

complaint, the plaintiffs describe Michigan’s political

maps as a “durable and severe gerrymander” which

“preserve[s] and enhance[s] the controlling party’s

power.” Compl. at 2. Plaintiffs claimed that “[t]here

is a near zero chance that the efficiency gaps for the

[plan] will neutralize during this decade, let alone

“switch signs” to favor Democrats. Compl. at 23. For

example, plaintiffs’ expert Christopher Warshaw, an

Assistant Professor of Political Science at George

Washington University, stated that Michigan’s

efficiency gaps “are durable, and thus partisan

gerrymandering in [the] state legislature[] is

unlikely to be remedied through the normal electoral

process”. Plaintiffs Expert Report, Christopher

Warshaw at 32 (June 1, 2018).

At the time the Michigan plaintiffs filed their

complaint and their “experts” authored their reports,

Republicans held 9 congressional seats while

Democrats held 5 congressional seats, Republicans

held 27 state senate seats while Democrats held 11,

and Republicans held 63 state house seats while

Democrats held 47. Despite the “durable Republican

gerrymander” Michigan Democrats were incredibly

successful during the 2018 elections. Democrats

flipped 2 Congressional seats, resulting in an evenly

18

split congressional delegation of 7 Republicans and 7

Democrats. Democrats flipped 5 additional state

senate seats, resulting in a closely split state senate

of 22 Republicans and 16 Democrats. And,

Democrats flipped 5 additional state house seats.

The “durability” of Michigan’s partisan gerrymander

was apparently limited to elections prior to 2018.

e. Other Examples

The judiciary’s inability to predict election

results is not limited to claims of partisan

gerrymandering in legislative elections. Until the

early 1990’s, superior court judges in North Carolina

were elected on a statewide basis. Samuel Latham

Grimes, Without Favor, Denial, or Delay: Will North

Carolina Finally Adopt the Merit Selection of Judges,

76 N.C. L. REV. 2266, 2286 (1998). In the late 1980’s

the North Carolina Republican Party, unhappy with

the statewide election of superior court judges

brought suit. Id. at 2285; In Republican Party v.

Hunt, 841 F. Supp. 722 (E.D.N.C. 1994), aff’d as

modified sub nom; Republican Party of N.C. v. N.C.

State Bd. of Elections, 27 F.3d 563 (4th Cir. 1994),

remanded sub nom; Republican Party v. Hunt, 77

F.3d 470 (4th Cir. 1996). The state Republican Party

asserted that Republicans would be successful in

several areas if superior court elections were held

district-wide rather than statewide. See id. at 726.

Because the Democratic Party held a wide margin in

voter registration, the Republicans argued that the

Democratic candidates would always win in

statewide elections See id. As a result, the United

States District Court for the Eastern District of

North Carolina held that statewide elections of

19

superior court judges were unconstitutional because

they diluted Republican voting power. Id. at 732.

“Reality seemed to support the court’s conclusion

because only one Republican had ever been elected

to a superior court judgeship in a statewide election.”

Samuel Latham Grimes, Without Favor, Denial, or

Delay: Will North Carolina Finally Adopt the Merit

Selection of Judges, 76 N.C. L. REV. 2266, 2285

(1998). Accordingly, the district court ordered that

superior court candidates be elected by voters in

their home districts, but also appear on the

statewide ballot just in case the decision was

reversed by a higher court. Id. at 733-34.

Notwithstanding the district court’s findings,

Republican candidates for superior court were very

successful in the 1994 statewide general elections,

winning all court of appeals seats and carrying the

statewide vote in 8 superior court races. Samuel

Latham Grimes, Without Favor, Denial, or Delay:

Will North Carolina Finally Adopt the Merit

Selection of Judges, 76 N.C. L. REV. 2266, 2285

(1998). Despite plaintiffs’ and the district court’s

predictions, the new election procedure actually

disadvantaged Republican candidates in a number of

races in which they were successful on the statewide

ballot, but lost close races to Democratic candidates

in their home districts. Id. at 2285 n. 174.

In light of the Republican successes in the 1994

statewide general election, the Fourth Circuit Court

of Appeals reconsidered Hunt. Defendants below

argued that the Republican Party “failed to carry its

burden of showing unconstitutional discriminatory

effects resulting from the statewide election of

superior court judges.” Id. at 2286 (citing Republican

Party v. Hunt, 1996 WL 60439, at *1-4 (4th Cir.

20

1996)). The Court of Appeals determined that the

results of the 1994 elections “were directly at odds

with the recent prediction by the district court that

Republican electoral exclusion would continue

unabated into the future” and remanded the case to

the district court for further consideration. Id.

Eventually, the North Carolina General Assembly,

likely tired of the uncertainty created by the judicial

decisions, declared all superior court judges would be

elected from local districts starting in 1996 and that

starting in 1998 those elections would be nonpartisan. Samuel Latham Grimes, Without Favor,

Denial, or Delay: Will North Carolina Finally Adopt

the Merit Selection of Judges, 76 N.C. L. REV. 2266,

2286 (1998).

f. Judicial Elections Predictions Have

Not Yet Been Accurate

This history clearly demonstrates that,

respectfully, the judiciary cannot be the best arbiter

of questions of partisan gerrymandering or claims of

political harm, because state and federal judges

continuously fail to be able to see clearly the future.

There simply are no reliable standards the judiciary,

or anyone else for that matter, can employ to predict

the future behavior of the electorate. Accordingly,

partisan

gerrymandering

claims

cannot

be

justiciable.

II. VOTER PREFERENCE IS NOT

IMMUTABLE

No matter how well judges might think they can

determine the effects of partisan influences on

21

redistricting, undoubtedly a necessary part of the

justiciability of these types of claims, they are unable

to do so because voters’ partisanship, partisan

affiliation, political positions, and electoral choices

are not immutable. There are many causes to this

mutability but the result is all the same—every

voter does not vote based solely on partisanship in

every instance. See Bandemer, 478 U.S. 156-60

(O’Connor concurring); Vieth, 541 U.S. at 287

(plurality op.).

The changing and dynamic electorate has been a

feature of politics in America for decades. The

publication Dynamics of the Party System: Alignment

and Realignment of the Political Parties by noted

scholar James L. Sundquist provides this:

Every election sees some change in the

distribution of the vote between the parties.

A Democrat who dislikes his party’s

candidate or is attracted by the Republican

nominee may vote Republican, or vice versa.

A party’s record in office, or its stand on

particular issues, will attract or repel at

least some voter, in every contest.

James L. Sundquist, Dynamics of the Party

System: Alignment and Realignment of the Political

Parties 4 (Brookings Institution Press 2011). This is

precisely the sort of long-term view of political

parties and candidate performance that the

proponents of partisan gerrymandering claims ask

this court to eschew. They ask this Court to direct

federal judges to act as political scientists and

statisticians. They urge this Court to demand that

federal courts look at a handful of recent elections

22

and assume that future elections will always result

the same way as in the past. The problem with this

view of the American body politic is that it ignores

the incredibly dynamic and ever-changing nature of

election results and voter behavior.

One need only look to the elections of 2012, 2016,

and 2018 to see that voter preferences change

candidate-to-candidate and year-to-year regardless

of partisan affiliation. In 2016 Donald Trump was

elected to the presidency. See David Wasserman,

Purple America Has All But Disappeared,

FIVETHIRTYEIGHT (Mar. 8, 2017), https://five

thirtyeight. com/features/purple-america-has-all-butdisappeared/. Donald Trump won the majority of the

vote in 21 congressional districts Barack Obama

carried only 4 years earlier in 2012. Nathaniel

Rakich, Election Update: The Swing District

Showdown, FIVETHIRTYEIGHT (Sep. 12, 2018),

https://fivethirtyeight.com/features/election-updatethe-swing-district-showdown/. Further, 206 counties

voted for both Obama and Trump. See David Leip,

Atlas of U.S. Presidential Elections, available at

https://uselectionatlas.org. These were two of the

most opposite presidential candidates of the modern

era in terms of style and ideology, and yet 21

congressional districts and 206 counties voted for

them both.4 In 2016, the voters of 12 congressional

districts both voted for Trump and to elect a

Democrat to Congress. Aaron Bycoffe and Nate

4 Further, Hillary Clinton won the majority of the vote in 13

congressional districts Mitt Romney carried in 2012. Nathaniel

Rakich, Election Update: The Swing District Showdown,

FIVETHIRTYEIGHT (Sep. 12, 2018), https://fivethirtyeight.com/

features/election-update-the-swing-district-showdown/.

23

Silver, Tracking Congress In The Age Of Trump,

115th

Congress,

FIVETHIRTYEIGHT,

https://projects.fivethirtyeight.com/congress-trumpscore/ (last accessed Jan. 30, 2019). Conversely, in

2016, Republicans won 23 congressional districts in

which Hillary Clinton won the popular vote. David

Nir, Daily Kos Elections’ Presidential Results by

Congressional District for the 2016 and 2012

Elections,

DAILY

KOS

(NOV.

19,

2012),

https://www.dailykos.com/stories/2012/11/19/116300

9/-Daily-Kos-Elections-presidential-results-bycongressional-district-for-the-2012-2008-elections. In

2018 the voters of 9 congressional districts who

voted for Trump in 2016 elected Democrats to

Congress. Id. at 116th Congress. And there are

currently 31 Democratic Members of Congress from

districts that voted for Donald Trump in 2016. See

Kyle Kondik, House 2020: The new crossover

districts, RASMUSSEN REPORTS (Nov. 29, 2018),

http://www.rasmussenreports.com/public_content/pol

itical_commentary/commentary_by_kyle_kondik/hou

se_2020_the_new_crossover_districts.

This volatility is not only present in voting

between offices, but also between subsequent

elections for the same office. For example, during the

2018 election 41 congressional districts flipped from

Republican to Democrat. Sean McMinn, Where The

Suburbs Moved Left — And How The Shift Swung

Elections,

NPR

(Nov.

27,

2018),

https://www.npr.org/2018/11/27/668726284/wherethe-suburbs-moved-left-and-how-it-swung-elections.

See also supra. In fact, some of the biggest county

flips in the South in 2018 were in the suburbs of

Charlotte, North Carolina, the very state at issue in

the present case. Id. This huge swing over the course

24

of only 2 years cannot be explained only in terms of

voter migration, but also in terms of cross-party

voting from year-to-year and candidate-to-candidate.

Voters defect from parties all the time. “In every

election cycle a substantial portion of partisan voters

defect and cast their ballots for candidates from the

other party.” Paul S. Herrnson and James M. Curry,

Issue

Voting

and

Partisan

Defections

in

Congressional Elections, vol. 36, no. 2 LEGISLATIVE

STUDIES QUARTERLY 281, 282-83 (2011). There are

innumerable reasons for these defections, such as

presidential popularity, preference for creating

divided government,5 incumbency favoritism, social

contexts, whether a candidate is a prominent hero or

celebrity, and even the physical attractiveness of a

particular candidate. Id. at 283.

Issues and issue-based campaigning also lead

directly to defection among “partisan” voters. Id. at

284. These issues can be “party-owned,” i.e. those

which differentiate one political party from the

other. Id. Party-owned issues can also “change quite

dramatically across generations as the result of new

events and new political issues, as well as the

positions the parties take.” Id. Alternatively,

candidates and their allies strategically set issue

agendas to support their candidacy, and research

has shown that “voters are fairly responsive to such

Recent studies have shown that some voters switch their

electoral choices based on who is in control of the executive in

order to balance political power. Michael A. Bailey and Elliott

B. Fullmer, Balancing in the U.S. States, 1978-2009, VOL. 11,

NO. 2 STATE POLITICS & POLICY QUARTERLY 158 (2011). This

balancing behavior results in voters disfavoring the party in

control of the executive when voting in midterm elections at

both the federal and state levels. Id. at 149.

5

25

agenda-setting efforts.” Id. at 285. Regardless of the

type of issue, it can have substantial crossover

appeal, causing voters to defect from the party with

which they have traditionally identified. Id. at 29597.

[I]ssues have an impact on voter decision

making in congressional elections—one that

extends beyond shoring up of the votes of

partisans or winning the votes of

independents. . . . [Issues] have the potential

to encourage some voters to look beyond

their party identification and vote for a

candidate of the opposing party. . . .

Although

an

individual’s

partisan

attachments may be a stable part of their

social identity . . . results suggest that some

voters can and do act contrary to their

partisanship.

Id. at 298-99.

Recent studies also suggest that voters weigh

ideology differently depending on where they fall in

the ideological spectrum. Specifically, moderate

voters, those who identify as neither ideologically

conservative or liberal, weigh the ideology of their

preferred congressional candidates much less and

may not even be able to identify the ideology of their

preferred candidate. See generally James Adams, et

al., Do Moderate Voters Weigh Candidates’

Ideologies? Voters’ Decision Rules in the 2010

Congressional Elections, UNIVERSITY OF CALIFORNIA,

DAVIS (Dec. 12, 2013), https://www.vanderbilt.

edu/csdi/events/Adams_Paper.pdf. The most recent

data suggests that self-identified moderates, and

26

those who are unable to classify themselves, make

up the majority of the U.S. adults. Lydia Saad,

Conservative Lead in U.S. Ideology Is Down to Single

Digits, GALLUP (Jan. 11, 2018), https://news.

gallup.com/poll/225074/conservative-lead-ideologydown-single-digits.aspx. Accordingly, the majority of

adults in the United States make their voting

decisions not based on ideology at all, but on other

more amorphous factors. The malleable nature of

voters’ preferences results in real competition for

their votes.

Further, voting trends change over time. These

trends can be based on changes in electoral district

demographic structure including socioeconomic

factors, race, education, age, and so forth. Rob

Griffin, Ruy Teixeira, and William H. Frey, Report:

America’s Electoral Future, Demographic Shifts and

the Future of the Trump Coalition, BROOKINGS (Apr.

19,

2018),

https://www.brookings.edu/research/

americas-electoral-future_2018/. Further, elections

have been, and will continue to be, swung by

unpredictable third-party voter activity. Id. This is

exactly what happened in 2016, and it will happen at

unforeseen times in the future. Id.

The dynamic nature of this system is not a new

phenomenon. One published study nearly 20 years

ago was titled Electoral Continuity and Change,

1868-1996, Electoral Studies, 1998, Larry Bartels.

One illuminating chart from the article, showing the

constancy of volatility in the popular vote for

president over long periods of time. That chart is

reproduced here:

27

28

Electoral volatility, Bartels concludes, must be

looked at over long periods of time, and that there

are constant changes in the voting behavior of the

electorate.

A look at the partisan composition of state

legislatures from 1990 through 2000 provides a good

visual representation. In most states then, state

legislatures enacted redistricting plans as ordinary

legislation. In 1990, Republicans held 6 state

legislatures, Democrats held 29, and 14 were split

control.6 By 2000, Republicans held 18 state

legislatures, Democrats held 16, and 15 were split

control. A chart depicting this is available at the

National Conference of State Legislatures (NCSL),

Partisan composition of State Legislatures 19902000,

http://www.ncsl.org/documents/statevote/

legiscontrol_1990_2000.pdf (accessed Feb. 2, 2018)

and is reproduced here:

6 Nebraska has a non-partisan unicameral legislature.

29

30

The next decennial election found the

Republican party at a near high water mark.

Democrats controlled 16 legislatures, while

Republicans held 25 legislatures, and 8 were split

control. A visual representation of this distribution,

available at NCSL, 2010 Post-Election Party Control

of State Legislatures, http://www.ncsl.org/research

/elections-and-campaigns/2010-postelection-controlof-legislatures.aspx (accessed Feb. 2, 2018) is

reproduced here:

31

Following the 2018 elections, these numbers

shifted dramatically again. According to NCSL,

there were 30 states with Republican legislative

majorities, 18 with Democratic majorities, and 1

with split control. The post-2018 information is

available here: http://www.ncsl.org/research/aboutstate-legislatures/partisan-composition.aspx.

The dissenting opinion in Whitford v. Gill

expressed well the concerns with volatile electoral

patterns. “When the Plaintiffs say there is a large

efficiency gap, all they are saying is that one side

won a lot of close winner-take-all districts. As such,

the efficiency gap appears to be of little utility in

measuring constitutional injury.” As Judge

Greisbach noted, “Professor Nicholas Goedert,

credibly testified that wave elections were relatively

common.” Whitford, 218 F. Supp. 3d at 959. In fact,

some experts believe that wave elections are now the

“norm.” Id. at 862. This suggests that the trends

noted by Sundquist, Bartels, and nearly every

observer of American politics has been that the

electorate’s voting behavior constantly changes.

Judge Greibach even noted that granular trends of

volatility do not even remain constant throughout

the geographic unit that comprises even a single

state. He wrote:

President Obama was hugely successful

in a few, traditional bastions of Democratic

voters—even more successful than in 2008.

But in the rest of the state, his support

declined. President Obama's landslide wins

in the Cities of Milwaukee and Madison

resulted in hundreds of thousands of wasted

votes—not wasted for the President, of

32

course, but for the down-ticket assembly

candidates who either won in landslide

victories or, more commonly, were unopposed

entirely.

Id. at 960. The implications for elections

conducted on a district by district basis are obvious.

Even changes in the electorate in a national or

statewide level say nothing about how voters in a

particular area of a state or a region of a state might

act relative to statewide or national trends. And

when voters are located in particular geographic

areas, the potential for unique voting behavior in

particular districts remains and is difficult to

predict.

Simply put, voters do not vote in a vacuum and

there are innumerable reasons they vote for certain

candidates, only one of which may be partisan

affiliation, and voters in different parts of a state

may vote for different candidates in different levels

of elections. Voter behavior is inherently

unpredictable and volatile from election-to-election

and candidate-to-candidate. This means that,

contrary to what Appellees may argue, there is real

competition in nearly every district for the support of

voters every election cycle. See also generally Brief of

Amicus

Curiae,

The

National

Republican

Congressional Committee in Support of Appellants,

Gill v. Whitford, No. 16-1161 at 41-55 (Aug. 4, 2017).

For decades, academic scholars have studied

political trends over time, and there is somewhat of a

consensus that change is constant. What PlaintiffsAppellees ask the Court to do is require that federal

judges ignore long term trends of constant change,

and assume that each subsequent election is

33

predictable by the previous election. On that basis,

they say, federal courts should make determinations

of the constitutionality of redistricting maps using

numbers from the last several elections. They ask

that the use of this “social science” to predict the

future be enshrined in this Court’s interpretation of

the Constitution and applied to every Congressional

and legislative map across the country. This Court

should reject such a short term and rigid view of the

American electorate and approach this request with

skepticism about the ability of federal judges to

accurately predict future political trends.

III. PARTISAN GERRYMANDERING

CLAIMS ARE NOT JUSTICIABLE

Every litigant that has advanced a partisan

gerrymandering claim has asked that courts

consider as an issue the political intent and partisan

impact of the maps. They claim that assessing

redistricting’s partisan effect on elections or

electability of candidates is a necessary part of any

justiciable standard under which such claims could

weighed. Indeed, in order to adjudicate partisan

gerrymandering claims courts must “assess the

effects of partisan gerrymandering, . . . fashion a

standard for evaluating a violation, and finally . . .

craft a remedy.” Vieth, 541 U.S. at 287 (plurality op.)

(citing Bandemer, 478 U.S. at 156 (O'Connor, J.,

concurring in judgment). The mutability of voters’

partisanship and electoral choices make all of these

impossible to accomplish in redistricting challenges.

Id. The only logical conclusion of this paradox is that

partisan

gerrymandering

claims

cannot

be

justiciable. See id. at 287 (plurality op.) (citing

34

Bandemer, 478 U.S. at 156 (O'Connor, J., concurring

in judgment).

Justice O’Connor put it perfectly over 30 years

ago: “To allow district courts to strike down

apportionment plans on the basis of their

prognostications as to the outcome of future elections

or future apportionments invites ‘findings’ on

matters as to which neither judges nor anyone else

can have any confidence.” Bandemer, 478 U.S. at 160

(O’Connor, J. concurring). This is because “[p]olitical

affiliation is not an immutable characteristic, but

may shift from one election to the next; and even

within a given election, not all voters follow the

party line.” Vieth, 541 U.S. at 287. See also supra.

Indeed, even Justice Kennedy, who

repeatedly refused to foreclose the possibility of

finding a justiciable standard to adjudicate partisan

redistricting challenges, expressed wariness at the

prospect of “adopting a constitutional standard that

invalidates a map based on unfair results that would

occur in a hypothetical state of affairs.” League of

United Latin American Citizens v. Perry, 548 U.S.

399, 420 (2006). See also Gill, 138 S. Ct. at 1928. See

also Schuck, The Thickest Thicket: Partisan

Gerrymandering and Judicial Regulation of Politics,

87 COLUM. L. REV. 1325, 1365 (1987) (noting that the

Bandemer plurality's standard requires judgments

that are “largely subjective and beg questions that

lie at the heart of political competition in a

democracy”); Vieth, 541 U.S. at 283 (plurality op.).

Plaintiffs-Appellees present to this Court a

claim that “partisan gerrymandering” is an

unbounded exercise that will always control the

outcome of elections. Not only has every judicial

conclusion about the future outcomes of elections

been wrong, but the fundamental truth about

35

“partisan gerrymandering” was well understood by

Justice O’Connor. She wrote:

[T]here is good reason to think that

political gerrymandering is a self-limiting

enterprise. In order to gerrymander, the

legislative majority must weaken some of its

safe seats, thus exposing its own incumbents

to greater risks of defeat. – rights they may

refuse to accept past a certain point.

Similarly, an overambitious gerrymander

can lead to disaster for the legislative

majority: because it has created more search

in which it hopes to win relatively narrow

victories, the same swing in overall voting

strength will tend to cost the legislative

majority more and more seats as the

gerrymander becomes more ambitious. More

generally, each major party presumably has

ample weapons at its disposal to conduct the

partisan struggle that often leads to a

partisan apportionment, but also often leads

to a bipartisan one. There is no proof before

us that political gerrymandering is an evil

that cannot be checked or cured by the

people or by the parties themselves. Absent

such proof, I see no basis for concluding that

there is a need, let alone a constitutional

basis, for judicial intervention.

Bandemer, 478 U.S. 152. Justice O’Connor’s

words were no truer in 1984 than they are today. On

the basis of her observations from this Court after

her many years as an elected official, her words have

proven true over the last 35 years of judicial missed

predictions and electoral experiences. This Court

should finally accept her conclusion and determine

36

that there is no basis for judicial intervention in

these cases.

CONCLUSION

For the foregoing reasons, the Court should

reverse the decision of the district court and hold

that partisan redistricting claims are not justiciable.

/s/ Jason B. Torchinsky

Jason B. Torchinsky

Counsel of Record

Dennis W. Polio

HOLTZMAN VOGEL

JOSEFIAK TORCHINSKY PLLC

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Warrenton, VA 20186

(540) 341-8808

(540) 341-8809

Jtorchinsky@hvjt.law

Dwpolio@hvjt.law

J. Justin Riemer

Chief Counsel

Republican National Committee

310 First Street, SE

Washington, D.C. 20003

(203) 863-8500

P. Christopher Winkelman

General Counsel

National Republican Congressional Committee

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