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

Supreme Court briefMar 8, 2019

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No. 18-422, 18-726

ROBERT A. RUCHO, ET AL.,

Appellants,

COMMON CAUSE, ET AL.,

Appellees.

On Appeal from the United States District Court

for the Middle District of North Carolina

LINDA H. LAMONE, ET AL.,

Appellants,

O. JOHN BENISEK, ET AL.,

Appellees.

On Appeal from the United States District Court

for the District of Maryland

BRIEF OF INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION, NATIONAL LEAGUE

OF CITIES, U.S. CONFERENCE OF MAYORS,

AND THE INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF APPELLEES

Charles W. Thompson, Jr.

Amanda Kellar Karras

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

51 Monroe St., Suite 404

Rockville, MD 20850

G. Michael Parsons, Jr.

Counsel of Record

245 Sullivan Street

New York, NY 10012

(212) 992-8196

michael.parsons@nyu.edu

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION

AND

SUMMARY

ARGUMENT .......................................................... 3

ARGUMENT ............................................................... 7

I. LOCAL GOVERNMENTS PLAY A VITAL

ROLE IN OUR CONSTITUTIONAL

ORDER AND IN CREATING DISTINCT

COMMUNITIES OF INTEREST .................... 7

II. PARTISAN

GERRYMANDERING

DISRUPTS THE REPRESENTATION OF

COMMUNITIES AND STIFLES LOCAL

DECISION-MAKING ..................................... 11

III. AMICI SUPPORT A CLEAR AND

COHERENT

APPROACH

REDISTRICTING LAW THAT RELIES

UPON INTUITIVE STANDARDS AND

EVIDENCE ...................................................... 17

A. The Ambiguous Treatment of Partisan

Gerrymandering Claims Complicates

Redistricting Law for Local Governments..... 18

B. Constitutional Doctrine Already

Provides Fair and Intuitive Standards

Familiar to Local Government

Lawyers ..................................................... 21

C. Permitting a Variety of Evidence

Would Improve Administrability ............. 27

CONCLUSION .......................................................... 33

TABLE OF AUTHORITIES

CASES:

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

135 S. Ct. 2652 (2015) ......................................... 5, 7

Avery v. Midland Cnty.,

390 U.S. 474 (1968) ................................................. 7

Baker v. Carr,

369 U.S. 186 (1962) ............................................... 20

Bartlett v. Strickland,

556 U.S. 1 (2009) ................................................... 32

Bd. of Educ. v. Pico,

457 U.S. 853 (1982) ............................................... 22

Benisek v. Lamone,

1:13-CV-3233, 2018 U.S. Dist. LEXIS

190292 (D. Md. Nov. 7, 2018) ....................... passim

Bethune-Hill v. Va. State Bd. of Elections,

141 F. Supp. 3d 505 (E.D. Va. 2015) .................... 11

Bethune-Hill v. Va. State Bd. of Elections,

137 S. Ct. 788 (2017) ....................................... 13, 32

Bond v. United States,

564 U.S. 211 (2011) ................................................. 7

iii

Brown v. Thomson,

462 U.S. 835 (1983) ............................................... 23

Bush v. Vera,

517 U.S. 952 (1996) ................................... 11, 12, 24

Calvin v. Jefferson Cnty. Bd. of Cmm’rs,

172 F. Supp. 3d 1292 (N.D. Fla. 2016)................. 18

Chen v. City of Houston,

206 F.3d 502 (5th Cir. 2000)........................... 18, 19

City of Rome v. United States,

446 U.S. 156 (1980) ............................................... 32

Clark v. Putnam County,

293 F.3d 1261 (11th Cir. 2002)............................. 18

Clinton v. City of New York,

524 U.S. 417 (1998) ................................................. 5

Colegrove v. Green,

328 U.S. 549 (1946) ............................................... 26

Common Cause v. Rucho,

318 F. Supp. 3d 777 (M.D.N.C. Aug. 27,

2018) .............................................................. passim

Cooper v. Harris,

137 S. Ct. 1455 (2017) ........................................... 28

Davis v. Bandemer,

478 U.S. 109 (1986) ............................................... 16

Easley v. Cromartie,

532 U.S. 234 (2001) ............................................... 32

Elrod v. Burns,

427 U.S. 347 (1976) ............................................... 23

Fortson v. Dorsey,

379 U.S. 433 (1965) ................................................. 3

Gaffney v. Cummings,

412 U.S. 735 (1973) ....................................... 4, 5, 24

Giles v. Harris,

189 U.S. 475 (1903) ............................................... 25

Gill v. Whitford,

138 S. Ct. 1916 (2018) ............................... 13, 15, 30

Gregory v. Ashcroft,

501 U.S. 452 (1991) ................................................. 7

Hunt v. Cromartie,

526 U.S. 541 (1999) ................................................. 5

Karcher v. Daggett,

462 U.S. 725 (1983) ......................................... 10, 11

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006) ......................................... 16, 30

Lepak v. City of Irving,

453 F. App’x 522 (5th Cir. 2011) .................... 18, 19

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................................. 5

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................. 7

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ......................................... 20, 21

Public Integrity Alliance, Inc. v. City of

Tucson,

836 F.3d 1019 (9th Cir. 2016)......................... 18, 19

Raleigh Wake Citizens Ass’n v. Wake Cnty.

Bd. of Elections,

827 F.3d 333 (4th Cir. 2016)................................. 18

Reynolds v. Sims,

377 U.S. 533 (1964) ................................................. 3

Roman v. Sincock,

377 U.S. 695 (1964) ............................................... 24

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990) ................................................. 31

Thornburg v. Gingles,

478 U.S. 30 (1986) ............................................ 30-31

Vieth v. Jubelirer,

541 U.S. 267 (2004) ..................................... 4, 23, 24

Wesberry v. Sanders,

376 U.S. 1 (1964) ..................................................... 3

Whitcomb v. Chavis,

403 U.S. 124 (1971) ................................................. 3

STATUTES:

28 U.S.C. § 2284(a) ..................................................... 19

OTHER AUTHORITIES:

Abraham Bell & Gideon Parchomovsky, Of

Property and Federalism, 115 Yale L.J.

72 (2005) .................................................................. 9

Alexis de Tocqueville, Democracy in

America (H. Reeve trans. 1961) ......................... 8, 9

Andrew Douglas, FairVote’s Monopoly

Politics 2016 Projections Updated,

FairVote (Sept. 22, 2015) ...................................... 30

Brief for Constitutional Law Professors as

Amici Curiae, Gill v. Whitford, 16-1161 .............. 20

Brief Amici Curiae of International

Municipal Lawyers Association, et al.,

Gill v. Whitford, 16-1161 ...................................... 17

Brief of Amici Curiae Law Professors, Gill v.

Whitford, 16-1161 ................................................. 19

Christopher Warshaw, An Evaluation of the

Partisan Bias in Pennsylvania’s

Congressional District Plan and its

Effects on Representation in Congress,

Expert Report in League of Women

Voters of Pa., et al., v. Commonwealth of

Pennsylvania, No. 261 MD 2017 (Pa.

Commw. Ct. Nov. 27, 2017) ............................. 13-14

FairVote, Monopoly Politics 2018 ........................ 29, 30

vii

Fritz W. Scharpf, Judicial Review and the

Political Question: A Functional

Analysis, 75 Yale L.J. 517 (1966) ......................... 25

G. Michael Parsons, Clearing the Political

Thicket: Why Political Gerrymandering

for Partisan Advantage is

Unconstitutional, 24 Wm. & Mary Bill

Rts. J. 1107 (2016) ................................................ 24

G. Michael Parsons, Gerrymandering &

Justiciability: The Political Question

Doctrine After Gill v. Whitford, 95 Ind.

L.J. (forthcoming 2020) ...................... 19, 20, 23, 25

Guy-Uriel E. Charles & Luis E. FuentesRohwer, Judicial Intervention as

Judicial Restraint, 132 Harv. L. Rev. 236

(2018) ......................................................... 22, 26, 27

J.B. Wogan, States and Localities are Losing

Their Influence in Washington,

Governing (June 2014) ......................................... 17

James E. Campbell, The Seats in Trouble

Forecast of the 2010 Elections to the U.S.

House, 43 Pol. Sci. & Politics 627 (2010) ............. 29

John Hart Ely, Democracy and Distrust: A

Theory of Judicial Review (1980) ......................... 23

Justin Levitt, Intent Is Enough: Invidious

Partisanship in Redistricting, 59 Wm. &

Mary L. Rev. 1993 (2018) ..................................... 24

viii

Michael S. Kang, Gerrymandering and the

Constitutional Norm Against

Government Partisanship, 116 Mich. L.

Rev. 351 (2017) ..................................... 21-22, 24, 31

Nicholas Stephanopoulos, The Causes and

Consequences of Gerrymandering, 59 Wm.

& Mary L. Rev. 2115 (2018) ........................... 14, 17

Nicholas O. Stephanopoulos & Christopher

Warshaw, The Impact of Partisan

Gerrymandering on Political Parties

(unpublished manuscript) .................................... 13

Paul A. Diller, Why Do Cities Innovate in

Public Heath? The Implications of Scale

and Structure, 91 Wash. U. L. Rev. 1219

(2014) ................................................................... 8, 9

Richard L. Hasen, Race or Party, Race as

Party, or Party All the Time: Three

Uneasy Approaches to Conjoined

Polarization In Redistricting and Voting

Cases, 59 Wm. & Mary L. Rev. 1837

(2018) ............................................................... 19, 20

Richard H. Pildes, Democracy, AntiDemocracy, and the Canon, 17 Const.

Comment. 295 (2000). ........................................... 25

Stephen Ansolabehere, James M. Snyder,

Jr., and Charles Stewart, III, Candidate

Positioning in U.S. House Elections, 45

Am. J. of Pol. Sci. 136 (2001) ................................ 14

Zachary Roth, Voting Fight Shifts to Local

Level in North Carolina, NBC News

(Aug. 8, 2016) ........................................................ 26

INTEREST OF AMICI CURIAE1

The International Municipal Lawyers Association

(“IMLA”) has been an advocate and resource for local

government attorneys since 1935. Owned solely by its

more than 2,500 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters. IMLA’s

mission is to advance the responsible development of

municipal law through education and advocacy, to

champion the development of fair and realistic legal

solutions, and to assist members on the vast and

cutting-edge legal issues facing local government

lawyers today. The IMLA provides the collective

viewpoint of local governments around the country on

legal issues before the Supreme Court of the United

States, the United States Courts of Appeals, and state

supreme and appellate courts.

The National League of Cities (“NLC”) is

dedicated to helping city leaders build better

communities. NLC is a resource and advocate for

19,000 cities, towns, and villages, representing more

than 218 million Americans.

The U.S. Conference of Mayors (“USCM”), founded

in 1932, is the official nonpartisan organization of all

United States cities with a population of more than

30,000 people, which includes over 1,400 cities at

Appellants and appellees have consented to the filing of

this brief through blanket consent. Pursuant to Rule 37.6,

counsel represents that no part of this brief was authored by

counsel for any party, and no person or entity made any monetary

contribution to the preparation or submission of the brief.

present. Each city is represented in USCM by its chief

elected official, the mayor.

The International City/County Management

Association (“ICMA”) is a non-profit professional and

educational organization whose 11,000 members

serve as appointed chief executives and assistants for

cities, counties, towns, and regional entities. ICMA’s

mission is to create excellence in local governance by

advocating for and developing the professional

management of local governments throughout the

world.

INTRODUCTION AND SUMMARY OF

ARGUMENT

“No right is more precious in a free country than

that of having a voice in the election of those who make

the laws under which, as good citizens, we must live.

Other rights, even the most basic, are illusory if the

right to vote is undermined.” Wesberry v. Sanders, 376

U.S. 1, 17 (1964). Because the right to vote “can be

denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly

prohibiting the free exercise of the franchise,” this

Court has held that “Our Constitution leaves no room

for classification of people in a way that unnecessarily

abridges this right.” Reynolds v. Sims, 377 U.S. 533,

555, 560 (1964) (quoting Wesberry, 376 U.S. at 17-18).

Indeed, almost immediately after establishing

the “one-person one-vote” doctrine, the Court

recognized that this vital principle might apply with

equal force to redistricting schemes that “designedly

. . . would operate to minimize . . . the voting strength

of racial or political elements of the voting population.”

Fortson v. Dorsey, 379 U.S. 433, 439 (1965). For “[t]he

question of the gerrymander is the other half of

Reynolds v. Sims.” Whitcomb v. Chavis, 403 U.S. 124,

176 (1971) (Douglas, J., concurring in part and

dissenting in part). “[T]he astute drawing of district

lines [can] make[] [a] district either heavily

Democratic or heavily Republican . . . . Lines may be

drawn so as to make the voice of one racial group weak

or strong, as the case may be.” Id. at 176-77. As

Justice Douglas observed: “The problem of the

gerrymander is how to defeat or circumvent the

sentiments of the community. The problem of the law

is how to prevent it.” Id. at 177.

Amici represent local communities—cities,

counties, and towns—across the United States. Such

localities and municipalities play an essential part in

our civic society, our democratic system, our

constitutional order, and in the formation of distinct

communities of interest. These communities are as

diverse and unique as they are integral to the life,

liberty, and happiness of a pluralistic, self-governing

people.

Partisan gerrymandering “defeat[s] [and]

circumvent[s] the sentiments” of these communities,

id., carving up localities and cobbling together bits and

pieces of neighborhoods for no legitimate government

purpose. Even when mapmakers manage to keep

some municipalities intact, it becomes “the will of the

cartographers rather than the will of the people [that]

govern[s].” Vieth v. Jubelirer, 541 U.S. 267, 331 (2004)

(Stevens, J., dissenting). Studies have confirmed the

unfortunate truth that voters recognized long ago:

those who hold the districting pen can foreordain the

composition and character of a state’s congressional

delegation without changing the mind of a single

voter.

When the state targets certain segments of the

population and suppresses their electoral influence

because it disfavors their political beliefs and fears the

way they will vote, it denies those voters meaningful

representation and leads elected officials to ignore the

distinct interests of localities as coherent

communities. This is the polar opposite of what this

Court has recognized as “[t]he very essence of

districting”: “to produce a different—a more ‘politically

fair’—result than would be reached with elections as

large.” Gaffney v. Cummings, 412 U.S. 735, 753

(1973). The fact that the redistricting process is

committed to political actors, permits the use of

political considerations for legitimate purposes, and

“inevitably has and is intended to have political

consequences” does not mean that “racial or political

groups [may be] fenced out of the political process [or

have] their voting strength invidiously minimized.”

Id. at 753-54.

Although this Court has acknowledged that

partisan gerrymanders “are incompatible with

democratic principles,” Ariz. State Legislature v. Ariz.

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658

(2015),

and

has

suggested

that

partisan

gerrymandering is not immune to judicial scrutiny, see

Hunt v. Cromartie, 526 U.S. 541, 551 n.7 (1999) (“This

Court has recognized . . . that political gerrymandering

claims are justiciable.”), it has declined—for decades—

to articulate “the standards that would govern such a

claim,” id. This status quo cannot persist. See

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)

(“The government of the United States has been

emphatically termed a government of laws, and not of

men. It will certainly cease to deserve this high

appellation, if the laws furnish no remedy for the

violation of a vested legal right.”); Clinton v. City of

New York, 524 U.S. 417, 452 (1998) (Kennedy, J.,

concurring) (“Abdication of responsibility is not part of

the constitutional design.”).

In the absence of any judicial remedy, legislators

have grown bolder and more brazen in their abuses.

This legal “no man’s land” not only undermines the

rule of law in general, it also spills over into adjacent

areas of the law, complicating redistricting doctrine

for local government lawyers everywhere. Because

many local governments also utilize single-member

districts, this ambiguity makes it more difficult than

necessary to identify the clear “dos and don’ts” of the

redistricting process.

Happily, the Constitution already provides wellworn and intuitive standards that are familiar to

cities, counties, and citizens alike. Whether the Court

decides to ground partisan gerrymandering claims in

the First Amendment, the Equal Protection Clause, or

both, everyone readily understands that the

Constitution prohibits the government from infringing

the right to vote, from singling out citizens for disfavor

based on their views, or from enacting laws that target

particular groups of citizens for no reason other than

disapproving their political beliefs.

Voters understand these principles innately, and

attorneys navigate these legal doctrines fluently. By

harmonizing the legal standards and evidentiary rules

at issue in partisan gerrymandering cases with those

found in the rest of redistricting jurisprudence, this

Court can provide doctrinal consistency and practical

tools to local government lawyers everywhere ahead of

the next round of redistricting. The result will be less

legal confusion, more compliant maps, and more

responsive and accountable representation for voters

and local communities across the country.

For these reasons, amici respectfully request that

this Court affirm the judgments below.

ARGUMENT

LOCAL GOVERNMENTS PLAY A VITAL

ROLE IN OUR CONSTITUTIONAL ORDER

AND

CREATING

DISTINCT

COMMUNITIES OF INTEREST

This Court has long recognized the critical

importance of political power being exercised at the

local level—that is, the level closest to those governed.

See, e.g., Avery v. Midland Cnty., 390 U.S. 474, 481

(1968). Preserving a space for more local governance

“allows local policies ‘more sensitive to the diverse

needs of a heterogeneous society,’ permits ‘innovation

and experimentation,’ enables greater citizen

‘involvement in democratic processes,’ and makes

government ‘more responsive’ by putting the States in

competition for a mobile citizenry.’” Ariz. State Legis.,

135 S. Ct. at 2673 (quoting Bond v. United States, 564

U.S. 211, 222 (2011) (quoting Gregory v. Ashcroft, 501

U.S. 452, 458 (1991))).

Each of these enduring and essential aspects of

governance aptly applies to our nation’s great cities,

small towns, and rural counties. This makes the views

of local governments especially relevant to the instant

cases.

To begin, local governments have a distinct ability

to reflect the particular needs and interests of diverse

communities across the country. As Justice Brandeis

famously argued, decentralization can foster

innovation in policymaking. See New State Ice Co. v.

Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,

dissenting) (“It is one of the happy incidents of the

federal system that a single courageous state may, if

its citizens choose, serve as a laboratory; and try novel

social and economic experiments without risk to the

rest of the country.”).

Just as the fifty states serve as “laboratories of

democracy,” the thousands of cities and counties

throughout our nation innovate with respect to policy

in all sorts of substantive areas. Whether tackling

public health challenges, advancing economic

development, developing novel strategies for

environmental protection, grappling with the

challenges of public safety, or addressing so many

other policy challenges, our cities, towns, and counties

have been true laboratories of democracy, with

innovations at the local level often later being adopted

by states and the national government when they have

succeeded (and cabined when they fail). See generally

Paul A. Diller, Why Do Cities Innovate in Public

Heath? The Implications of Scale and Structure, 91

Wash. U. L. Rev. 1219 (2014) (discussing dynamics of

local innovation and policy diffusion). Ensuring that

all three levels of governance remain empowered in

our federal system is vitally important to preserving

this experimentation and accountability.

In addition, municipalities offer uniquely

democratic benefits of participation. From the original

New England town meetings of the founding

generation—a tradition that still endures—to

communities across the country today, opportunities

for ordinary citizens to participate and interact with

local officials abound at the local level in ways not

possible at the state or federal level. See 1 Alexis de

Tocqueville, Democracy in America 174 (H. Reeve

trans. 1961) (“It is incontestably true that the love and

the habits of republican government in the United

States were engendered in the townships and in the

provincial assemblies.”). In part, this is because there

generally are far fewer constituents for each elected

official even in our largest global cities, compared to

that of state and national politics. Diller, supra, at

1257-58. These representation ratios allow local

leaders to respond more directly to the people who

elect them.

Local governments enhance democracy in another

related sense, as Alexis de Tocqueville highlighted

when he noted that “[t]own-meetings are to liberty

what primary schools are to science; they bring it

within the people’s reach, they teach men how to use

and how to enjoy it.” De Tocqueville, supra, at 76.

Service on one of our nation’s countless city councils,

school boards, county commissions, and myriad other

local bodies provides an invaluable training ground for

public leaders. Eventual leaders in our state and

national governments often learn their earliest lessons

in the crucible of local government.

Finally, a certain amount of healthy competition

among cities promotes efficiency and accountability in

governance.

Cf. Abraham Bell & Gideon

Parchomovsky, Of Property and Federalism, 115 Yale

L.J. 72, 97 (2005) (reviewing empirical evidence that

“migration patterns between city and suburbs are

significantly affected by tax levels and investment in

education”). Our nation’s cities, towns, and counties

have the flexibility to craft distinct policies to respond

to the needs and preferences of mobile residents.

For these reasons and more, county and city

boundaries play a key part in the redistricting process.

“Subdivision boundaries tend to remain stable over

time. Residents of political units such as townships,

cities, and counties often develop a community of

interest, particularly when the subdivision plays an

important role in the provision of governmental

services.” Karcher v. Daggett, 462 U.S. 725, 758 (1983)

(Stevens, J., concurring).

Respect for locality

boundaries

can

improve

civic

engagement,

responsiveness, accountability, and avoid confusion

for voters, candidates, and election administrators

alike. See id. (“[D]istricts that do not cross subdivision

boundaries are administratively convenient and less

likely to confuse the voters."). As Justice Powell once

wrote:

Most voters know what city and county

they live in, but fewer are likely to know

what congressional district they live in if

the districts split counties and cities. If a

voter knows his congressional district, he

is more likely to know who his

representative is.

This presumably

would lead to more informed voting. It

also is likely to lead to a representative

who knows the needs of his district and

is more responsive to them.

Id. at 787 n.3 (Powell, J., dissenting) (internal

quotations and citations omitted).

Because localities form a natural “community of

interest” with common values and concerns that run

deeper than party label, they often bring tailored,

apolitical solutions to local policy problems. And just

as this Court has rightly associated the

decentralization and devolution found in our federal

system with unique benefits, so too does

empowerment of and respect for localities enhance and

improve our democracy.

II. PARTISAN GERRYMANDERING DISRUPTS

THE REPRESENTATION OF COMMUNITIES

AND STIFLES LOCAL DECISION-MAKING

While local governments facilitate civic

engagement,

responsiveness,

accountability,

pluralism, local autonomy, and liberty, partisan

gerrymandering undermines these critical democratic

values.

1. Gerrymandering tears coherent communities

of interest apart and strings dissimilar communities

together. When a congressional district is “nothing

more than an artificial unit divorced from, and indeed

often in conflict with, the various communities

established in the State,” id. at 787, representatives

are less attuned to the unique interests of local

communities and those communities are less capable

of coherently conveying local sentiments “up the

chain” to their federal representatives, see, e.g.,

Bethune-Hill v. Va. State Bd. of Elections, 141 F. Supp.

3d 505, 537-38 (E.D. Va. 2015), affirmed in part and

vacated in part, 137 S. Ct. 788 (2017) (noting that “the

splitting of municipal and county jurisdictions drew

the ire of citizens, who . . . pointed out the difficulties

that citizens have in knowing who to contact, who to

hold accountable, and who among several legislators

should coordinate or lead the representation of local

city and county interests”).

The Court has recognized that gerrymanders that

“exhibit utter disregard of city limits, local election

precincts, and voter tabulation district lines” can

“cause[] a severe disruption of traditional forms of

political activity.” Bush v. Vera, 517 U.S. 952, 974

(1996) (O’Connor, J.).

In Vera, for example,

“[c]ampaigners seeking to visit constituents ‘had to

carry a map to identify the district lines, because so

often the borders would move from block to block’;

voters ‘did not know the candidates running for office’

because they did not know which district they lived

in.” Id.

Both of the partisan gerrymanders before the

Court this term dismember established communities

of interest and disrupt traditional political activities.

In Maryland, “a blatant targeting of . . . the

Republicans in Frederick County” led that county to

be divided “for the first time since 1840.” Benisek v.

Lamone, 1:13-CV-3233, 2018 U.S. Dist. LEXIS

190292, *86-87 (D. Md. Nov. 7, 2018) (Bredar, J.,

concurring). One of the plaintiffs testified that voters

in the area “were confused about the candidates [and]

didn’t know who they should be engaging,” with

Republican organizers spending most of their outreach

time simply “trying to ascertain the voter’s district.”

Id. at *29 (majority opinion).

Meanwhile, in North Carolina, Appellants’ own

expert “conceded that the 2016 plan divided numerous

political subdivisions,” with all but one of the districts

“divid[ing] municipalities and communities of interest

along partisan lines.” Common Cause v. Rucho, 318 F.

Supp. 3d 777, 883, 901, 903, 906, 907, 910, 912, 913,

915, 917, 919, 920, 922 (M.D.N.C. Aug. 27, 2018)

(discussing statewide and district-specific examples).

Here, too, “[v]oters and advocacy organizations elected

not to participate in congressional races because they

believed they could not ‘have a democratic—small

‘D’—democratic impact.” Id. at 931.

Studies suggest these are more than mere

anecdotes. “When a district plan is skewed against a

party, its candidates contest fewer legislative seats

and have worse credentials when they do run, its

donors contribute less money, and its voters are not as

supportive at the polls.” Nicholas O. Stephanopoulos

& Christopher Warshaw, The Impact of Partisan

Gerrymandering

Political

Parties

20-21

(unpublished

manuscript

available

https://ssrn.com/abstract=3330695).

In short, the

associational harms one might expect from partisan

gerrymandering are quite real. See Gill v. Whitford,

138 S. Ct. 1916, 1938 (2018) (Kagan, J., concurring)

(suggesting that gerrymanders may cause “difficulties

fundraising, registering voters, attracting volunteers,

generating support from independents, and recruiting

candidates to run for office”).

2. Even when mapmakers manage to hew to

municipal boundaries, partisan gerrymandering can

still inflict harm and undermine local policies,

interests, and decision-making. Cf. Bethune-Hill v.

Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017)

(holding that “a conflict or inconsistency between the

enacted plan and traditional redistricting criteria is

not a threshold requirement” to establish a

gerrymandering claim).

This is because the

combination of political polarization and partisan

gerrymandering restricts the space for pragmatic

community compromises and interferes with the

representation of localities—with their distinct sets of

preferences—as a whole.

Polarization “means that representatives in

Congress nearly always vote the party line.”

Christopher Warshaw, An Evaluation of the Partisan

Bias in Pennsylvania’s Congressional District Plan

and its Effects on Representation in Congress, Expert

Report in League of Women Voters of Pa., et al., v.

Commonwealth of Pennsylvania, No. 261 MD 2017,

15-16 (Pa. Commw. Ct. Nov. 27, 2017). As this has

become more common, studies have shown an

increasingly “muted responsiveness to localities”

among representatives.

Id. (citing Stephen

Ansolabehere, James M. Snyder, Jr., and Charles

Stewart, III, Candidate Positioning in U.S. House

Elections, 45 Am. J. of Pol. Sci. 136 (2001)). As a

result, “polarization exacerbates the effects of

gerrymandering on the political process.” Id. at 16

n.10.2

In other words, partisan gerrymandering is about

more than “bloodless concepts like seat and vote

shares;” it’s about the “distort[ion] [of] legislative

representation—the beating heart of a democracy.”

Nicholas

Stephanopoulos,

The

Causes

and

Consequences of Gerrymandering, 59 Wm. & Mary L.

Rev. 2115, 2118 (2018). Mapmakers possess the ability

to swing the ideology of a state’s congressional

delegation dramatically—“all without changing the

mind of a single voter.” Id. at 2120. See also Warshaw,

supra, at 22-23.

And because representatives

increasingly vote the party line based on national

issues rather than local concerns, citizens who are

targeted by partisan gerrymanders “are artificially

deprived of the opportunity to . . . have their views

represented in Congress.” Warshaw, supra, at 15.

This has a profound impact on nuanced, local issues

Although polarization compounds the harms of

gerrymandering, “[t]he consensus among Political Scientists

using pre-2011 redistricting period data is that gerrymandering

did not cause th[e] [rise in] polarization [since 1970]. There is not

yet a consensus about the effect of redistricting on polarization in

recent years.” Warshaw, supra, at 16 n.10.

and whether voters who belong to distinct

communities of interest have any voice as a member of

that local community of interest.

To be sure, this Court made clear in Gill v.

Whitford that “[a] citizen’s interest in the overall

composition of the legislature” and in the “policies

adopted by the legislature” may not give rise to a

claim. 138 S. Ct. at 1931. But if those interests are

“embodied in [the citizen’s] right to vote for his

representative,” id., then it is all-the-more vital that

the Court vigorously protect the foundational right

from which this democratic representation flows.

First-hand testimony from voters in the cases

before the Court reflect the damaging downstream

consequences that occur when states violate these

rights. As one of the plaintiffs from Maryland

testified, “every time we were out [campaigning], we

met somebody who said, it’s not worth voting anymore,

every single time.” Benisek, 2018 U.S. Dist. LEXIS

190292, at *71. Voters in North Carolina had similar

sentiments, expressing that “they felt their vote didn’t

count.” Rucho, 318 F. Supp. 3d at 931. Whether one

is a Maryland Republican or a North Carolina

Democrat, gerrymandering strips disfavored voters of

the opportunity to have their unique voice heard in the

halls of Congress.

The

diminished

responsiveness

representatives to all of their constituents is not

simply troubling as a matter of structural principles,

institutional stability, and enduring constitutional

values; it also distinguishes modern cases from the

past. One repeated concern of the Court has been

accepting—without any evidence—the notion that

representatives will not be responsive to the needs of

their constituencies as whole. See Davis v. Bandemer,

478 U.S. 109, 132 (1986) (plurality opinion) (“An

individual . . . who votes for a losing candidate is

usually deemed to be adequately represented by the

winning candidate and to have as much opportunity to

influence that candidate as other voters in the district.

We cannot presume . . . without actual proof to the

contrary, that the candidate elected will entirely

ignore the interests of those voters.”); League of United

Latin Am. Citizens v. Perry (“LULAC”), 548 U.S. 399,

469-70 (2006) (Stevens, J., dissenting) (“[T]his Court

has concluded that our system of representative

democracy is premised on the assumption that elected

officials will seek to represent their constituency as a

whole, rather than any dominant faction within that

constituency.”).

As overwhelming statistical and testimonial

evidence continue to prove, gerrymandered districts

insulate representatives and absolve them of the need

to give any weight to the views of those voters who

have been stripped of meaningful electoral power.

Thus, even when local municipal boundaries are not

breached, partisan gerrymandering robs county and

city constituencies of the opportunity to have their

unique and diverse perspectives heard and dampens

congressional concern for local community interests.3

This disconnect manifests in the policies enacted at the

both the federal and state level, with local prerogatives

increasingly steamrolled by legislators more focused on

advancing a single ideology than providing space for constituents

with diverse views to enact locally tailored solutions based on the

needs of the community. For instance, in Gill v. Whitford, several

amici provided examples of the growing number of local policies

In short, partisan gerrymandering frustrates

the preservation of local government interests,

restricts the freedom of local governments to pursue

policies suited to their constituents, and impedes the

ability of voters who belong to distinct communities of

interest to have their views heard in Washington.

III. AMICI SUPPORT A CLEAR AND COHERENT

APPROACH TO REDISTRICTING LAW THAT

RELIES UPON INTUITIVE STANDARDS

AND EVIDENCE

As organizations representing local governments

and local government lawyers, amici recognize the

need for—and advocate for—realistic legal solutions to

complex legal problems. Here, too, amici believe that

the partisan gerrymandering cases before the Court

offer an opportunity to clarify the state of the law,

apply well-established legal standards, and provide

being preempted by state legislatures in states with extreme

partisan gerrymandering. See generally Brief Amici Curiae of

International Municipal Lawyers Association, et al., Gill v.

Whitford, 16-1161 (filed Sept. 5, 2017).

Because gerrymandering “dramatically influences the

representational

distortion

House

delegations,”

Stephanopoulos, supra, at 2144, and polarization continues to

grow, local concerns have increasingly fallen by the wayside on

Capitol Hill as well, see J.B. Wogan, States and Localities are

Losing Their Influence in Washington, Governing (June 2014),

available at http://www.governing.com/topics/politics/gov-stateslocalities-losing-influence.html (last accessed Jan. 18, 2019).

Because Congress and state legislatures alike wield the power to

override, curtail, or disregard the policies and positions of

municipalities across the country, these bodies must possess the

utmost democratic and constitutional legitimacy if their

intrusions on local autonomy and policymaking are to be justified.

workable evidentiary guidance to courts and lawyers

across the country ahead of the next major round of

redistricting in 2021.

The Ambiguous Treatment of Partisan

Gerrymandering Claims Complicates

Redistricting Law for Local Governments

Although many redistricting cases and analyses

focus on state legislative and congressional

representation, local governments (and local

government lawyers) must also navigate the various

strands of this Court’s redistricting case law. From

one-person one-vote cases to racial dilution and racial

sorting cases, localities often deal with cutting-edge

legal questions before claims are brought on a wider

basis.4 In fact, challenges raised to city and county

redistricting decisions are especially useful to the

development of redistricting case law because they are

See, e.g., Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd.

of Elections, 827 F.3d 333 (4th Cir. 2016) (one-person one-vote

case regarding population deviations based on illegitimate

consideration of partisan advantage); Public Integrity Alliance,

Inc. v. City of Tucson, 836 F.3d 1019 (9th Cir. 2016) (equal

protection and Anderson-Burdick case regarding city’s hybrid city

council system utilizing ward-level primaries and at-large

general election); Lepak v. City of Irving, 453 F. App’x 522 (5th

Cir. 2011) (one-person one-vote case regarding use of citizenvoting-age population versus total population); Clark v. Putnam

County, 293 F.3d 1261 (11th Cir. 2002) (racial gerrymandering

case); Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000) (racial

gerrymandering case regarding whether districts’ shapes and

demographics provide adequate circumstantial evidence to

prevent summary judgment); Calvin v. Jefferson Cnty. Bd. of

Cmm’rs, 172 F. Supp. 3d 1292 (N.D. Fla. 2016) (one-person onevote case regarding use of prison populations in calculating equal

population).

some of the few challenges that are routed through the

U.S. Courts of Appeals and subject to this Court’s

discretionary jurisdiction. See 28 U.S.C. § 2284(a)

(convening three-judge district courts “when an action

is filed challenging the constitutionality of the

apportionment of congressional districts or the

apportionment of any statewide legislative body”)

(emphasis added).5

And while redistricting law has a reputation for

being complex,6 a great deal of that complexity is due

to this Court’s ambiguous treatment of prior partisan

gerrymandering claims. See generally Brief of Amici

Curiae Law Professors, Gill v. Whitford, 16-1161 (filed

Sept. 5, 2017). Because the lack of a claim leaves open

doctrinal gaps in racial gerrymandering law and the

one-person one-vote doctrine, mapmakers and

litigants alike engage in “legal arbitrage,” distorting

the body of law that does exist by using it to fight about

conduct governed by a body of law that does not exist.

See G. Michael Parsons, Gerrymandering &

Justiciability: The Political Question Doctrine After

Gill v. Whitford, 95 Ind. L.J. (forthcoming 2020)

(manuscript

60,

available

https://ssrn.com/abstract=3334370)

[hereinafter

Parsons, Gerrymandering & Justiciability]. Even if

See, e.g., Public Integrity Alliance, 836 F.3d 1019 (9th Cir.

2016), cert. denied, 197 L. Ed. 2d 518 (2017); Lepak, 453 F. App’x

522 (5th Cir. 2011), cert. denied, 569 U.S. 904 (2013); Chen, 206

F.3d 502 (5th Cir. 2000), cert. denied, 532 U.S. 1046 (2001).

Richard L. Hasen, Race or Party, Race as Party, or Party

All the Time: Three Uneasy Approaches to Conjoined Polarization

In Redistricting and Voting Cases, 59 Wm. & Mary L. Rev. 1837,

1852 (2018) (“The most charitable thing to say about the current

state of racial gerrymandering law is that it is a big mess.”).

the Court were to deviate from its default rule that

redistricting laws are justiciable, Baker v. Carr, 369

U.S. 186 (1962),7 this doctrinal vacuum would remain,

leaving mapmakers and litigants to “shadowbox” over

the real issues at stake, see Hasen, supra, at 1879.

In short, the law’s internal inconsistency,

ambiguity, and incompleteness provides the greatest

headache to local government lawyers faced with the

task of advising clients on the “dos and don’ts” of

redistricting law, not the flexibility of any particular

“do” or the rigorousness of any specific “don’t.”

Crafting a claim (even a demanding one) that

completes the redistricting-law picture would not add

complexity but ease it.

As this Court has remarked, “clear distinctions”

are preferable to “delphic alternative[s]” where

“structural safeguards” and institutional boundaries

are at issue. See Plaut v. Spendthrift Farm, Inc., 514

Creating a new justiciability exception for partisan

gerrymandering claims would require a substantial (and

troubling) shift in this Court’s political-question jurisprudence.

See generally Brief for Constitutional Law Professors as Amici

Curiae, Gill v. Whitford, 16-1161 (filed Sept. 5, 2017). As the

district court in Rucho observed, “a majority of the Supreme

Court never has found that a claim raised a nonjusticiable

political question solely due to the alleged absence of a judicially

manageable standard for adjudicating the claim.” 318 F. Supp.

3d at 842 n.19.

Indeed, the two cases before the Court are perhaps “the most

significant political-question doctrine case[s] of our generation.”

Parsons, Gerrymandering & Justiciability, supra, at 3. Before

significantly expanding that doctrine, the Court should consider

carefully the institutional, federalism, and separation-of-powers

implications of such a change. See generally id. (arguing that the

modern political question doctrine is incompatible with the limits

and obligations imposed on judicial power by Article III).

U.S. 211, 239-40 (1995).

Vague and equivocal

treatment “simply prolongs doubt and multiplies

confrontation.” Id. at 240. The Court’s approach to

partisan gerrymandering has done precisely this,

blurring the lines of lawful behavior and drawing

legislators out beyond constitutional boundaries. As

such, redistricting law would benefit from advice

familiar to local government attorneys everywhere:

“Good fences make good neighbors.” Id.

Constitutional

Doctrine

Already

Provides Fair and Intuitive Standards

Familiar to Local Government Lawyers

As the district court in Rucho noted, partisan

gerrymandering “violates a number of wellestablished constitutional standards—that the

government act impartially, not infringe the right to

vote, and not burden individuals based on the exercise

of their rights to political speech and association.” 318

F. Supp. 3d at 853. Whether the Court looks to the

Equal Protection Clause, the First Amendment, or

both, the Constitution provides well-worn, intuitive

standards that are familiar to local governments, local

government attorneys, and the public.

Applying

these

principles

partisan

gerrymandering is not some adventuresome departure

from this Court’s case law, but rather a long-overdue

correction that harmonizes the Court’s approach to

partisan gerrymandering claims with the rest of its

fundamental constitutional doctrines and its overall

approach to judicial neutrality. 8 As Circuit Judge

See generally Michael S. Kang, Gerrymandering and the

Constitutional Norm Against Government Partisanship, 116

Niemeyer observed below in Benisek, “[C]itizens have

no constitutional right to be assigned to a district that

is likely to elect a representative that shares their

views,” but “they do have a right . . . not to have the

value of their vote diminished because of the political

views they have expressed.” 2018 U.S. Dist. LEXIS

190292, at *46.

This antipathy to viewpoint-targeting is standard

constitutional fare and “typical of First Amendment

violations in other contexts.” Id. (citing Bd. of Educ.

v. Pico, 457 U.S. 853, 870-71 (1982)). The Court does

not uphold judicial independence and impartiality by

steering clear of such cases, even when they involve

political actors or political issues. Rather, the Court

protects the Constitution and preserves its own public

status by rigorously and consistently honoring these

constitutional mandates. See Guy-Uriel E. Charles &

Luis E. Fuentes-Rohwer, Judicial Intervention as

Judicial Restraint, 132 Harv. L. Rev. 236, 259-60

(2018) (arguing that establishing limits to partisan

gerrymandering could help protect the Court “against

Mich. L. Rev. 351 (2017); Rucho, 318 F. Supp. 3d at 927 (“How

can the First Amendment prohibit the government from

disfavoring certain viewpoints, yet allow a legislature to enact a

districting plan that disfavors supporters of a particular set of

political beliefs? How can the First Amendment bar the

government from disfavoring a class of speakers, but allow a

districting plan to disfavor a class of voters and candidates? How

can the First Amendment protect government employees’

political speech rights, but stand idle when the government

infringes on voters’ political speech rights? And how can the First

Amendment ensure that candidates ascribing to all manner of

political beliefs have a reasonable opportunity to appear on the

ballot, and yet allow a state electoral system to favor one set of

political beliefs over others?”).

charges of partisanship” and “save the Court from

having to referee . . . secondary partisan fights” over

other manipulations of electoral rules).

Relying on such established principles would

provide clear rules that are second-nature to local

government

attorneys,

understandable

mapmakers, and obvious to the average citizen. Just

as political affiliation can be considered in hiring for

policy-level government jobs (where the government

has a legitimate interest), but not in hiring for nonpolicy-level government jobs (where it does not), see

Vieth, 541 U.S. at 294 (citing Elrod v. Burns, 427 U.S.

347 (1976)), so too can political affiliation be used to

advance legitimate redistricting goals (such as

consistently creating competitive districts 10 or

As Chief Justice Roberts noted at oral argument in Gill

v. Whitford, any decision provided by the Court must be intuitive

and sound in clear constitutional principles, lest the “intelligent

man on the street” doubt the explanation, thereby risking

damage to the “status and integrity” of the Court. See Gill v.

Whitford, 16-1161, Oral Arg. Tr. 37:11-38:4 (Oct. 3, 2017). “Far

from ‘impairing’ the reputation of the Court,” a clear and

principled decision restricting partisan gerrymandering is more

likely to be received by the public like the Court’s celebrated oneperson one-vote doctrine—a rule that ultimately “‘enhanced the

prestige of the Court.’”

Parsons, Gerrymandering &

Justiciability, supra, at 66 (quoting John Hart Ely, Democracy

and Distrust: A Theory of Judicial Review 121 (1980)).

10 Appellants in Benisek have argued that altering

Maryland’s Sixth District created a more “competitive” district.

Br. for Appellants, Lamone v. Benisek, 18-726, at 6 (filed Feb. 8,

2019). But this Court has frequently reminded redistricting

litigants that even legitimate redistricting policies cannot survive

when they are applied inconsistently or in a discriminatory

fashion. See Brown v. Thomson, 462 U.S. 835, 844 (1983) (noting

that the population variations were “entirely the result of the

“allocat[ing] seats proportionately,” Vera, 517 U.S. at

964-65 (O’Connor, J.) (citing Gaffney, 412 U.S. at 75154)) but not illegitimate redistricting goals (such as

partisan advantage, see Vieth, 541 U.S. at 307

(Kennedy, J., concurring) (noting that “[a]

determination that a gerrymander violates the law

must rest on . . . a conclusion that the [political]

classifications, though generally permissible, were

applied in an invidious manner or in a way unrelated

to any legitimate legislative objective”)). These are

well-known standards that local governments and

local government lawyers throughout the country

encounter and incorporate into their policy- and

decision-making every day across a range of contexts.

Simply put, mapmakers cannot draw districts to

favor Republicans just because the mapmaker

“think[s] electing Republicans is better than electing

Democrats,” Rucho, 318 F. Supp. 3d at 801, or “set out

to draw . . . borders in a way that [is] favorable to the

Democratic party” because the mapmaker would like

to see more Democrats elected, Benisek, 2018 U.S.

Dist. LEXIS 190292, at *10. “[T]hat is not a choice the

Constitution allows . . . mapdrawers to make.” Rucho,

318 F. Supp. 3d at 801.11

consistent and nondiscriminatory application of a legitimate

state policy”); Roman v. Sincock, 377 U.S. 695, 710 (1964)

(permitting population deviations “only as may occur in

recognizing certain factors that are free from any taint of

arbitrariness or discrimination”).

11 See also Justin Levitt, Intent Is Enough: Invidious

Partisanship in Redistricting, 59 Wm. & Mary L. Rev. 1993

(2018); Kang, Gerrymandering and the Constitutional Norm

Against Government Partisanship, supra; G. Michael Parsons,

Clearing the Political Thicket: Why Political Gerrymandering for

To be sure, introducing clear limits on partisan

gerrymandering will require “resetting legislators’

expectations about what behavior is constitutionally

tolerable.” Parsons, Gerrymandering & Justiciability,

supra, at 59. But this does not make intervention

impossible, inappropriate, or even uncommon. After

all, “how ‘justiciable’ would First-Amendment issues

appear today if the process of interpretation and

application had been halted in 1912?” Id. (quoting

Fritz W. Scharpf, Judicial Review and the Political

Question: A Functional Analysis, 75 Yale L.J. 517, 595

(1966)).

New doctrine always creates a new

equilibrium—this is how the Constitution’s vital

checks and balances maintain fidelity to that

instrument over time.

Some of our Nation’s most profound betrayals of

that promise have occurred when this Court has failed

to fulfill its own role in maintaining that equilibrium.

In Giles v. Harris, this Court claimed it could not

provide “a remedy for political wrongs” and stood idly

by in the face of a sweeping disenfranchisement

scheme targeting black voters. See 189 U.S. 475, 486

(1903). Once the Court “effectively blessed” the

approach, it spread to other states and “virtual[ly]

eliminat[ed] black citizens from political participation

in the South” for well over half-a-century. Richard H.

Pildes, Democracy, Anti-Democracy, and the Canon, 17

Const. Comment. 295, 313, 297 (2000). In Louisiana,

for example, the number of black voters on the

registration rolls dropped from 130,334 to 730 between

1896 and 1910. See id. at 303.

Partisan Advantage is Unconstitutional, 24 Wm. & Mary Bill Rts.

J. 1107 (2016).

The Court’s “narrative of nonintervention” would

arise again in Colegrove v. Green, where a plurality

cited Giles with favor for the proposition that the issue

was not fit for “judicial determination.” See Charles &

Fuentes-Rohwer, supra, at 243 (discussing Colegrove

v. Green, 328 U.S. 549 (1946)). In short, the same

arguments raised against partisan gerrymandering

claims today have been raised throughout our Nation’s

history. The Court relied upon them “when it refused

to intervene to protect African Americans against

widespread racial discrimination in the political

process and when it refused to intervene to address the

problem of grossly malapportioned districts.” Id. at

240. The Court would eventually rise to meet the task

before it in prior eras, and it must do so again in our

own time.

Nor is resetting legislators’ expectations

imprudent. Quite the contrary. At present, the

Court’s approach sends a signal to elected officials

(and to our next generation of leaders) that there is

success to be had in brazen suppression, that there is

power to be found in dismantling democracy, and that

accountability to the voters is merely the fate of the

unsavvy—a fool’s game from a bygone age. 12

Representative democracy cannot long survive when

the values and principles that make it possible are not

See Zachary Roth, Voting Fight Shifts to Local Level in

North

Carolina,

NBC

News

(Aug.

2016),

http://www.nbcnews.com/politics/elections/voting-fightshiftslocal-level-north-carolina-n625751 (noting that the “head of

a leading conservative think tank” in North Carolina is “publicly

urging” county election officials to "impose new schemes to limit

access to the polls" because "making voting harder is just

‘partisan politics’—and that's fair game”) (last accessed Jan. 18,

2019).

modeled, imparted, and passed along. Here, an ounce

of prevention is worth a pound of cure. By doing “a

little now—rein[ing] in partisan gerrymandering,” the

Court can “do a lot less later—by deterring [other,

more extreme] bad behavior it would otherwise have

to deal with on the merits.” Id. at 241.

In fact, the Court faces a unique opportunity this

term to minimize litigation, streamline the shift to

compliant maps, and reset expectations on a broad

scale. Every map in the United States—congressional,

state, and local—must be revisited following the

upcoming 2020 census with or without this Court’s

guidance. Amici believe clarification by the Court

would substantially benefit those tasked with drawing

new maps following the census and would obviate the

need for litigation that localities might otherwise face

in future years based on the current amorphous state

of the law. With a coherent political gerrymandering

claim (or claims) in place, mapmakers will better

understand what practices are and are not permissible

and local government lawyers will better understand

how the various strands of this Court’s redistricting

jurisprudence interact with one another so as to

minimize or eliminate the risk of a lawsuit—political,

racial, or otherwise.

Permitting a Variety of Evidence Would

Improve Administrability

Given the diverse contexts in which a partisan

gerrymandering claim could arise, amici also urge the

Court to employ a consistent evidentiary approach to

such claims and permit both plaintiffs and defendants

to rely upon a variety of types of evidence in bringing

and defending claims. This Court held in Cooper v.

Harris that a racial gerrymandering claim rests upon

fundamental constitutional standards, and while

certain types of evidence (such as an alternative map)

may be particularly persuasive or useful in supporting

such a claim, the Equal Protection Clause does not

demand any “special evidentiary prerequisite.” 137 S.

Ct. 1455, 1479-80 (2017). This should be the case in

the partisan gerrymandering context as well.

Expert evidence, for example, should be

permitted to maintain or defend a claim. Such

evidence will often be the best evidence available in

the pursuit or defense of a partisan gerrymandering

claim. See, e.g., Rucho, 318 F. Supp. 3d at 870-80, 89394 (relying on “extreme statistical outlier” analyses to

support findings of discriminatory intent and effect).

Expert evidence has not flummoxed lawyers or judges

in racial dilution cases, racial sorting cases, or any

other number of cases in which such evidence is

deployed. See id. at 853-58 (citing examples of judicial

reliance on statistical and social science evidence as

proof of a violation of a constitutional standard).

Moreover, this kind of evidence is becoming

increasingly intuitive and accessible in the

redistricting context. It does not take special technical

training to understand that a map is an outlier when

it is more partisan than 99% of almost 25,000

neutrally-drawn maps. See id. at 872. And data and

studies about the impact of maps are being made

available to the public online with greater and greater

frequency.

That said, such studies need not be mandatory,

either as a threshold showing or as a defensive

necessity. For example, the district court in Benisek

relied upon the Democratic Performance Index (DPI)

and the Cook Partisan Voting Index (PVI) to find that

the plaintiffs’ “electoral effectiveness—i.e., their

opportunity to elect a candidate of choice—was

meaningfully burdened” by intentional state action.

2018 U.S. Dist. LEXIS 190292, at *59-61. As Judge

Niemeyer observed, such analyses are sophisticated

and dependable tools in their own right, commonly

used by the mapmakers themselves. See id. at *13-14

(noting that the DPI metric was used by the consultant

that designed Maryland’s plan); id. at *25-27 (noting

that the PVI metric is a “well-respected” measure, and

observing that “[w]hen the Cook Report has rated a

district ‘Solid Republican’ on the eve of a congressional

election, the Republican candidate has won the race

99.7% of the time; . . . when a district has been rated

as ‘Likely Democratic,’ the Democratic candidate has

won 94% of the time”) (citing James E. Campbell, The

Seats in Trouble Forecast of the 2010 Elections to the

U.S. House, 43 Pol. Sci. & Politics 627, 628 (2010)).

Independent, nonpartisan organizations have

relied on similar kinds of modeling to demonstrate

how gerrymandering can diminish the weight of

invidiously targeted votes and undermine voters’

equal opportunity to exercise the franchise and impact

the political process. For example, FairVote predicted

the outcome in 361 of 435 congressional seats ahead of

the 2016 election with 100% accuracy using no

information other than 2010-2014 election results and

whether an incumbent was running in the race. 13

13 FairVote, Monopoly Politics 2018, at 2, available at

https://fairvote.app.box.com/v/MonopolyPolitics2018

(last

accessed Jan. 18, 2019) [hereinafter, “FairVote, Monopoly Politics

2018”].

These projections were made in November 2014—two

years before the election—and were only updated to

account for races in which representatives announced

they would not be seeking reelection in 2016. 14 “In

these districts, the challengers [were] powerless to

affect the outcome, regardless of their funding, their

qualities as candidates, or their ability to motivate

supporters.”15

Members of Congress elected from such “safe”

seats (with a 10-percent advantage, for example) “need

not worry much about the possibility of shifting

majorities, so they have little reason to be responsive

to political minorities in their district.” LULAC, 548

U.S. at 470–71 (Stevens, J., dissenting in part).

Pretending that such partisan gerrymanders are not

readily identifiable or do not substantially impact the

ability of targeted voters to meaningfully affect the

political process would be sheer judicial fiction.

Of course, if a representative resides in a district

that is particularly favorable based on natural

geography

other

legitimate

redistricting

considerations, a partisan gerrymandering claim

cannot lie. See Gill, 138 S. Ct. at 1933. Similarly, the

mere fact that one candidate wins and one candidate

loses any given race does not, standing alone, prove or

negate the existence of an invidious suppressive effect.

This is the same evidentiary approach local

government attorneys encounter in the Court’s racial

dilution case law. See Thornburg v. Gingles, 478 U.S.

Andrew Douglas, FairVote’s Monopoly Politics 2016

Projections

Updated,

FairVote

(Sept.

22,

2015)

http://www.fairvote.org/fairvote_s_monopoly_politics_2016_proje

ctions_updated (last accessed Jan. 18, 2019).

15 FairVote, Monopoly Politics 2018, supra, at 2.

30, 57 (1986) (noting that the “loss of political power

through vote dilution is distinct from the mere

inability to win a particular election”).

In other words, it simultaneously can be true that

a voter possesses no right to live in any particular

district or win any particular election, and that the

same voter possesses the right not to have the electoral

odds intentionally stacked against her. See Rutan v.

Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990)

(noting that the Constitution protects citizens “from

even an act of retaliation as trivial as failing to hold a

birthday party for a public employee . . . when

intended to punish her for exercising her free speech

rights”); Kang, supra, at 383 (“Party members may not

have any constitutional entitlement to electoral

success, but they should have a constitutional

expectation against the government actively trying to

burden their representational interests based on their

partisan affiliation and beliefs.”).

Evidence need not prove impossibility (and,

therefore, an ability to divine the future) in order to

prove the existence of a meaningful burden. The

evidence need only show that the gerrymander was

intended to dilute the influence of the targeted voters

and that the gerrymander’s success is assured under

any likely electoral scenario.16 These elements can be

See Rucho, 318 F. Supp. 3d at 867 (“[A] plaintiff must

show that the dilution . . . is likely to persist in subsequent

elections.”); Benisek, 2018 U.S. Dist. LEXIS 190292, at *60

(“Republican voters in the new Sixth District were,

in relative terms, much less likely to elect their preferred

candidate than before the 2011 redistricting, and,

in absolute terms, they had no real chance of doing so.”).

proven through a variety of evidence, and the Court

should not foreclose this evidence just as it does not

foreclose it in other redistricting cases.17

By adopting a consistent and understandable

evidentiary approach and relying on well-established,

familiar, and coherent constitutional standards, the

Court can provide local governments and their lawyers

a clear lay of the land heading into the next round of

redistricting, forestall a range of racial and political

gerrymandering claims that might otherwise arise,

17 That the Court already allows defendants in racial

sorting cases to rely upon a range of evidence to prove that

politics, not race, predominated in the linedrawing process

demonstrates that courts are more than capable of receiving and

considering a host of different circumstantial and direct evidence

in deciding whether the “essential basis” used in forming a

district was racial or political. See Bethune-Hill, 137 S. Ct. at

799. If political considerations are found to predominate, the only

remaining intent question is whether that political purpose is

legitimate or illegitimate. Compare Easley v. Cromartie, 532 U.S.

234, 239-47 (2001) (legitimate interest in pursuing a 6-6 “partisan

balance”), with Rucho, 318 F. Supp. 3d at 808 (illegitimate

interest in pursuing a 10-3 “partisan advantage”). This question

parallels that already ably managed in the racial gerrymandering

context, where courts distinguish between legitimate and

illegitimate racial considerations in redistricting. Compare City

of Rome v. United States, 446 U.S. 156, 177 (1980), abrogated in

part by Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612 (2013)

(legitimate interest in preventing racial dilution and securing

equal opportunity to elect), with Bartlett v. Strickland, 556 U.S.

1, 20 (2009) (illegitimate interest in racial maximization). See

also Gill v. Whitford, 16-1161, Oral Arg. Tr. 7:8-9 (Oct. 3, 2017)

(JUSTICE GINSBURG: “[Doesn’t] max-Republican . . . have the

same problem that ‘max-Black’ did?”).

and help preserve the faith and voice of voters residing

in distinct, local communities across the country.

CONCLUSION

For the foregoing reasons, amici respectfully

request that this Court affirm the judgments below.

Respectfully submitted,