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 A. RUCHO, et al.,

Appellants,

v.

COMMON CAUSE, et al.,

Appellees.

On Appeal from the United States District Court

for the Middle District of North Carolina

BRIEF OF AMICI CURIAE PROFESSORS

CHRISTOPHER ELMENDORF, JOSEPH

FISHKIN, BERTRALL ROSS, DOUGLAS

SPENCER, AND FRANITA TOLSON

IN SUPPORT OF APPELLEES

Christopher S. Elmendorf

Martin Luther King, Jr.

Professor of Law

University of California,

Davis, School of Law

Room 2131 King Hall

400 Mrak Hall Drive

Davis, CA 95616

(530) 752-5756

cselmendorf@ucdavis.edu



Mark A. Packman

Counsel of Record

Jenna A. Hudson

Samantha R. Miller

Alison D. Gaske

GILBERT LLP

1100 New York Avenue NW

Suite 700

Washington, DC 20005

(202) 772-2320

packmanm@gilbertlegal.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................. iiii

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

SUMMARY OF THE ARGUMENT......................... 4

ARGUMENT ............................................................ 5

I.

FEDERAL LAW OFTEN PROTECTS

STRUCTURAL VALUES, BUT NOT

EVERYONE WHO CARES ABOUT THEM

HAS STANDING TO SUE WHEN THEY

ARE VIOLATED ........................................... 5

II.

VOTE DILUTION HARMS THE

STRUCTURAL VALUE OF DEMOCRATIC

RESPONSIVENESS, WHICH IMPACTS

ALL MEMBERS OF A POLITICALLY

ALLIED GROUP OF CITIZENS, YET NOT

ALL CITIZENS HAVE STANDING

TO SUE .......................................................... 9

A.

The Genealogy of This Court’s Vote

Dilution Jurisprudence Makes Clear

that Vote Dilution Harms the

Structural Value of Democratic

Responsiveness ................................... 9

1.

Office-Specific Dilution Cases 10

2.

Legislative-Body Dilution

Cases ...................................... 12

ii

B.

a.

Racial Vote Dilution

Cases ............................ 14

b.

Partisan Vote Dilution

Cases ............................ 25

Notwithstanding the Breadth of the

Structural Harms Caused by Vote

Dilution, Standing in Vote Dilution

Cases is District-Specific .................. 27

CONCLUSION ....................................................... 31

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Legislative Black Caucus v. Ala.,

135 S. Ct. 1257 (2015)....................................... 10

Ass’n of Data Processing Serv. Orgs.,

Inc. v. Camp,

397 U.S. 150 (1970)......................................... 7, 8

Baker v. Carr,

369 U.S. 186 (1962)......................................28, 29

Bartlett v. Strickland,

556 U.S. 1 (2009)..........................................23, 24

Bond v. United States,

564 U.S. 211 (2011)............................................. 8

Bowsher v. Synar,

478 U.S. 714 (1986)............................................. 6

Chisom v. Roemer,

501 U.S. 380 (1991) (Scalia, J.,

dissenting) ......................................................... 21

City of Mobile v. Bolden,

446 U.S. 55 (1980) (plurality

opinion).........................................................17, 18

Common Cause v. Rucho,

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

2018) .................................................................. 14

iv

Davis v. Bandemer,

478 U.S. 109 (1986) (plurality

opinion).........................................................25, 26

Fortson v. Dorsey,

379 U.S. 433 (1965)................................13, 14, 25

Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd.,

537 F.3d 667 (D.C. Cir. 2008)

(Kavanaugh, J., dissenting), aff’d

in part, rev’d in part and

remanded, 561 U.S. 477 (2010) .......................... 6

Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd.,

561 U.S. 477 (2010)............................................. 6

Gaffney v. Cummings,

412 U.S. 735 (1973)................................25, 26, 27

Gill v. Whitford,

138 S. Ct. 1916 (2018)................................ passim

Gray v. Sanders,

372 U.S. 368 (1963)................................11, 12, 13

Humphrey’s Executor v. United States,

295 U.S. 602 (1935)............................................. 8

INS v. Chadha,

462 U.S. 919 (1983)............................................. 6

Johnson v. De Grandy,

512 U.S. 997 (1994)................................15, 20, 22

v

Lance v. Coffman,

549 U.S. 437 (2007)........................................... 28

League of United Latin Am. Citizens v.

Perry,

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

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)............................................. 7

Myers v. United States,

272 U.S. 52 (1926)............................................... 8

PHH Corp. v. Consumer Fin. Prot.

Bureau,

881 F.3d 75 (D.C. Cir. 2018) (en

banc) (Kavanaugh, J., dissenting)...................... 6

Purcell v. Gonzalez,

549 U.S. 1 (2006)............................................... 11

Reynolds v. Sims,

377 U.S. 533 (1964)..........................10, 12, 13, 23

Rogers v. Lodge,

458 U.S. 613 (1982)..................................9, 16, 17

Schlesinger v. Reservists Comm. to

Stop the War,

418 U.S. 208 (1974)......................................... 7, 8

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016)......................................... 7

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998)............................................... 8

vi

Thornburg v. Gingles,

478 U.S. 30 (1986)............................18, 19, 20, 24

Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645 (2017)......................................... 7

United States v. Hays,

515 U.S. 737 (1995)........................................... 29

United States v. Saylor,

322 U.S. 385 (1944)..................................9, 10, 11

Warth v. Seldin,

422 U.S. 490 (1975)............................................. 8

Wesberry v. Sanders,

376 U.S. 1 (1964)......................................6, 28, 29

Whitcomb v. Chavis,

403 U.S. 124 (1971)................................15, 16, 25

White v. Regester,

412 U.S. 755 (1973).................................... passim

Whitmore v. Arkansas,

495 U.S. 149 (1990)............................................. 8

Wittman v. Personhuballah,

136 S. Ct. 1732 (2016)....................................... 29

Youngstown Sheet & Tube Co. v.

Sawyer,

343 U.S. 579 (1952) (Jackson, J.

concurring) .......................................................... 6

vii

Constitutional Provisions

U.S. Const. Amend. XIV .............................10, 18, 28

U.S. Const. Art. I, § 1 ......................................... 5, 21

U.S. Const. Art. I, § 2 ............................................... 6

U.S. Const. Art. II .................................................... 6

Supreme Court Rules and Statutes

Supreme Court Rule 37.3 ........................................ 1

Supreme Court Rule 37.6 ........................................ 1

Voting Rights Act Section 2 ............................ passim

Other Authorities

Adam B. Cox, Partisan

Gerrymandering and

Disaggregated Redistricting,

2004 Sup. Ct. Rev. 409 ..................................... 21

Antonin Scalia, The Doctrine of

Standing as an Essential Element

of the Separation of Powers, 17

Suffolk U. L. Rev. 881 (1983) ............................. 7

Christopher S. Elmendorf, Making

Sense of Section 2: Of Biased Votes,

Unconstitutional Elections, and

Common Law Statutes, 160 U. Pa.

L. Rev. 377 (2012) ............................................. 17

viii

Heather K. Gerken, Understanding

the Right to an Undiluted Vote, 114

Harv. L. Rev. 1663 (2001)................................. 15

Michael W. McConnell, The

Redistricting Cases: Original

Mistakes and Current

Consequences, 24 Harv. J.L. & Pub.

Pol’y 103 (2000) ................................................. 13

S. Rep. No. 97-417 (1982)....................................... 18

Thomas M. Boyd & Stephen J.

Markman, The 1982 Amendments

To The Voting Rights Act: A

Legislative History, 40 Wash & Lee

L. Rev. 1347 (1983),

https://scholarlycommons.law.wlu.e

du/cgi/viewcontent.cgi?article=2674

&context=wlulr ................................................. 17

1

INTEREST OF AMICI CURIAE1

Amici curiae Professors Christopher S.

Elmendorf, Joseph Fishkin, Bertrall Ross, Douglas

Spencer, and Franita Tolson are legal scholars whose

research and writing focus on redistricting and other

aspects of election law.

Professor Christopher Elmendorf currently

serves as the Martin Luther King, Jr., Professor of

Law at the University of California, Davis, School of

Law. He has published numerous articles on these

topics in, among other law reviews, the University of

Chicago Law Review, the Columbia Law Review, and

the Yale Law Journal. He received his J.D. from Yale

Law School.

Professor Joseph Fishkin is the Marrs McLean

Professor in Law at The University of Texas at

Austin. His research on electoral politics and voting

rights has been published in the Columbia Law

Review, the Supreme Court Review, and the Yale Law

Journal, among others. He received his J.D. from

Yale Law School and a D. Phil. in Politics from Oxford

University.



1 In accordance with Supreme Court Rule 37.6, amici curiae

state that the position they take in this brief has not been

approved or financed by Appellants, Appellees, or their counsel.

Neither Appellants, nor Appellees, nor their counsel had any role

in authoring, nor made any monetary contribution to fund the

preparation or submission of, this brief.

As required by Supreme Court Rule 37.3, amici curiae state

that all parties have consented to the filing of this brief.

Evidence of written consent of all parties has been filed with the

Clerk.

2

Professor Bertrall Ross is the Chancellor’s

Professor of Law at U.C. Berkeley School of Law. His

work on election law, constitutional law, and

statutory interpretation has been published in the

Columbia Law Review, NYU Law Review, University

of Chicago Law Review, and California Law Review

among others. He received his J.D. from Yale Law

School, and a M.P.A. from Princeton University

Woodrow Wilson School of Public and International

Affairs.

Professor Douglas Spencer is Professor of Law

and Public Policy at the University of Connecticut,

and for the 2018–2019 academic year, he is Visiting

Professor at the University of Chicago. His research

on minority voting rights and election law has been

published in the California Law Review, the

Columbia Law Review, and the Election Law Journal

among others. He holds a Ph.D. in Jurisprudence and

Social Policy from the University of California,

Berkeley.

Professor Franita Tolson is a Professor of Law

at University of Southern California Gould School of

Law.

Professor Tolson’s writings on partisan

gerrymandering and other topics have been published

in leading law reviews including, the Boston

University Law Review, the Vanderbilt Law Review,

the Alabama Law Review, the Notre Dame Law

Review, and the University of Pennsylvania Law

Review Online. She received her J.D. from the

University of Chicago Law School.

Amici curiae submit this brief to rebut

arguments made by Appellants and their amici

3

regarding the nature of the vote dilution “injury”

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

Appellants argue that this case suffers from “the

same basic flaws” as Gill, Appellants Br. at 25,

because, like Gill, it concerns “‘group political

interests’ and ‘generalized partisan preferences’ that

this Court has no ‘responsib[ility]’ to ‘vindicate.’” Id.

at 24 (alteration in original). Appellants further

argue that the court below erroneously assumed that

the baseline against which effect is to be measured is

the “overall partisan makeup of the State,” id. at 43,

whereas in Appellant’s view a dilution injury per Gill

is an injury to individuals in a particular legislative

district, id. at 26, not to a statewide group of voters

tied together by their partisan preferences. Id. at 25.

Similarly, amicus curiae in support of

Appellants, the National Republican Redistricting

Trust (“NRRT”), argues that although the

Constitution “provides rights for definite individuals,”

Brief of Amicus Curiae The National Republican

Redistricting Trust in Support of Appellants at 29,

Feb. 11, 2019 (“NRRT Amicus Br.”), there is no

individual right to be free from partisan

gerrymandering and that what plaintiffs really are

seeking is a “group right to proportional

representation” for political parties, id. at 2.

These arguments confuse the personal “injury

in fact” that plaintiff-voters must show to establish

standing in a dilution case with the merits-stage

showing of harm to structural democratic values of

responsiveness or majority rule that plaintiffs must

make to prevail. Appellants and the NRRT seek to

turn Gill, a case solely about standing, into a case

4

about the merits of partisan gerrymandering claims

in general.

As shown below, these arguments are at odds

with this Court’s precedents. In vote dilution cases,

the “injury” necessary to establish standing is not the

same as the “injury” necessary to establish liability.

This distinction, which Appellants and the NRRT

ignore, is not an anomaly, but rather a requirement

that exists whenever plaintiffs seek to enforce

structural constitutional values.

SUMMARY OF THE ARGUMENT

The Constitution protects structural values of

democratic accountability and responsiveness; it also

separates powers among the branches of the federal

government to protect a broadly shared interest in

liberty. However, not everyone who shares these

interests can sue to protect them; a plaintiff must

have standing. Whether a plaintiff has standing is

analytically distinct from the merits of his claim.

Thus, given the breadth of structural interests, the

injury necessary for standing will typically be

narrower and often different in kind from the

constitutional harm to which plaintiff objects.

Vote dilution cases are consistent with the

above-described principles. As a review of the

genealogy of the Court’s vote dilution cases

demonstrates, these cases vindicate important

structural values of representation and democratic

responsiveness.

However, as in other areas of

constitutional law, not everyone who shares an

interest in these structural values can sue to

5

vindicate them. Rather, only a plaintiff who lives in

a challenged district has standing. Yet the type of

injury which must be shown to establish standing is

different from the structural harm—a harm to

democratic responsiveness—which must be shown to

prevail on the merits. Thus, there is no merit to the

argument that Gill’s holding about standing

necessitates a district-specific analysis of dilution at

the liability stage. On the contrary, in a partisan vote

dilution challenge to a state’s map of congressional

districts—just as in a racial vote dilution challenge to

such a map—the liability-stage inquiry into dilutive

effect must consider representational opportunities

statewide.

ARGUMENT

I.

FEDERAL LAW OFTEN PROTECTS

STRUCTURAL VALUES, BUT NOT

EVERYONE WHO CARES ABOUT THEM

HAS STANDING TO SUE WHEN THEY

ARE VIOLATED

Many provisions of the Constitution exist to

protect structural values, such as accountability and

democratic responsiveness, as well as the broadly

shared interest in liberty.

Yet these common

structural values do not confer the right to sue upon

all Americans.

For example, the vesting of “[a]ll legislative

powers” in a bicameral Congress, see U.S. Const.

Art. I, Ț 1, together with the carefully wrought

presentment procedure for its exercise, guarantees

that citizenry’s liberties will not be abridged without

6

a considered legislative decision or the legislature’s

clear delegation of rulemaking authority to a

politically accountable executive. INS v. Chadha, 462

U.S. 919, 944Ȃ51 (1983).2 Similarly, accountability

for the execution of the laws is protected by the

Vesting and Take Care Clauses of Article II, which

ensure that “[t]he buck stops with the President.”

Free Enter. Fund v. Pub. Co. Accounting Oversight

Bd., 561 U.S. 477, 493 (2010); see also Free Enter.

Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d

667, 689 (D.C. Cir. 2008) (Kavanaugh, J., dissenting)

(“The Framers established a single President by

design” because it “furthers accountability by making

one person responsible for all decisions made by and

in the Executive Branch”), aff’d in part, rev’d in part

and remanded, 561 U.S. 477 (2010).

And the

democratic responsiveness of Congress is guaranteed

by Article I, Section 2, which provides that the House

of Representatives shall be “chosen ‘by the People of

the several States.’” See Wesberry v. Sanders, 376

U.S. 1, 7 (1964) (quoting U.S. Const. Art. I, Ț 2).

Yet a citizen’s generalized interest in liberty,

accountability, or responsiveness does not confer

standing to challenge a separation of powers violation



2 See also Bowsher v. Synar, 478 U.S. 714, 730 (1986)

(“[S]tructural protections against abuse of power are critical to

preserving liberty.”); PHH Corp. v. Consumer Fin. Prot. Bureau,

881 F.3d 75, 164 (D.C. Cir. 2018) (en banc) (Kavanaugh, J.,

dissenting) (“To prevent tyranny and protect individual liberty,

the Framers of the Constitution separated the legislative,

executive, and judicial powers of the new national

government.”); Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 635 (1952) (Jackson, J. concurring) (“[T]he

Constitution diffuses power the better to secure liberty . . . .”).



7

in federal court. See, e.g., Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 220 (1974)

(standing “may not be predicated upon an interest . . .

held in common by all members of the public, because

of the necessarily abstract nature of the injury all

citizens share”).3 To have standing, a plaintiff must

plead and prove, among other things, an “injury in

fact.” See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016); Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992); Ass’n of Data Processing Serv.

Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970). This

injury “must affect the plaintiff in a personal and

individual way.” Spokeo, 136 S. Ct. at 1548 (quoting

Lujan, 504 U.S. at 560 n.1); see also Town of Chester

v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017)

(plaintiff must have “a personal stake in the outcome

of the controversy”) (citation omitted).4

This “injury in fact” need not be the same as, or

even similar in kind to, the type of interest which the

constitutional provision at issue was meant to protect.

Indeed, this Court has emphasized that the existence

of a cause of action and the existence of standing are

“distinct concepts” and that “whether a plaintiff



3 Accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 573Ȃ74

(1992) (“[A] plaintiff raising only a generally available grievance

about government—claiming only harm to his and every citizen’s

interest in proper application of the Constitution and laws . . .

does not state an Article III case or controversy.”).

4 See also Antonin Scalia, The Doctrine of Standing as an

Essential Element of the Separation of Powers, 17 Suffolk U. L.

Rev. 881, 881–82 (1983) (“[P]laintiff’s alleged injury [must] be a

particularized one, which sets him apart from the citizenry at

large.”).



8

states a claim for relief ‘goes to the merits’ in the

typical case, not the justiciability of a dispute.” Bond

v. United States, 564 U.S. 211, 219 (2011) (quoting

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 92

(1998)).5 Accordingly, the Court has rejected efforts

to find standing based on the merits of a plaintiff’s

case. See Schlesinger, 418 U.S. at 225 (criticizing

lower court for finding standing based on a

“premature evaluation of the merits of [plaintiffs’]

complaint”) (footnote omitted); Ass’n of Data

Processing Serv. Orgs., 397 U.S. at 153 (rejecting test

for standing based on whether plaintiff had a “legal

interest” that had been harmed, on the grounds that

such a test “goes to the merits”). And, in cases where

the structural value is a broad one, the inquiry into

injury on the merits will typically be much broader

than the inquiry into injury for standing purposes.

Myers v. United States, 272 U.S. 52 (1926), and

Humphrey’s Executor v. United States, 295 U.S. 602

(1935), illustrate the distinction between the values

at stake in the merits inquiry and the injury

necessary to show standing in separation of powers

cases. In each of those cases, this Court decided

foundational questions about the separation of

powers not at the behest of ordinary citizens asserting

their interest in liberty or accountability, but rather

at the behest of an individual government employee

asserting his personal interest in back pay following

an allegedly wrongful termination. Surely this



5 Accord Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)

(“[S]tanding ‘in no way depends on the merits of the [petitioner’s]

contention that particular conduct is illegal . . . .’”) (alteration in

original) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).

9

interest was nowhere near the Framers’ minds when

they undertook to allocate powers among the three

branches of the federal government.

II.

VOTE DILUTION HARMS THE

STRUCTURAL VALUE OF

DEMOCRATIC RESPONSIVENESS,

WHICH IMPACTS ALL MEMBERS OF A

POLITICALLY ALLIED GROUP OF

CITIZENS, YET NOT ALL CITIZENS

HAVE STANDING TO SUE

Vote dilution cases follow the same pattern as

the constitutional cases discussed above. Like those

cases, vote dilution cases protect important structural

values—here, representation and responsiveness.

See, e.g., Rogers v. Lodge, 458 U.S. 613, 623Ȃ26 (1982)

(citing plaintiffs’ lack of representation and

defendants’ lack of responsiveness); White v. Regester,

412 U.S. 755, 765Ȃ69 (1973) (same). However, not all

citizens with an interest in these values can sue to

protect them. Only a person who lives in an

improperly drawn district has standing because only

such a voter has suffered the requisite injury in fact.

See § II.B, infra.

A.

The Genealogy of This Court’s Vote

Dilution Jurisprudence Makes

Clear that Vote Dilution Harms the

Structural Value of Democratic

Responsiveness

This Court first addressed vote dilution in the

context of elections for a single officeholder. See

United States v. Saylor, 322 U.S. 385 (1944). In the

10

single-office setting, a practice is dilutive if it

interferes

with

the

majoritarian

outcome.

Subsequently the Court extended the concept of vote

dilution to address the composition of legislative

bodies. In legislative-body cases—such as the instant

case—a practice is dilutive if it impinges on majority

rule or renders the body inadequately representative

of, or responsive to, a group of citizens with common

political interests, an inquiry that requires

assessment of the legislative body or districting map

as a whole. See League of United Latin Am. Citizens

v. Perry, 548 U.S. 399, 437 (2006) (“LULAC”) (courts

should look “statewide” in determining whether

members of a racial or ethnic minority group have

achieved a roughly proportional percentage of

legislative seats); Reynolds v. Sims, 377 U.S. 533, 562

(1964) (comparing voting power of citizens in different

parts of the state).6

1.

Office-Specific Dilution Cases

In office-specific dilution cases, dilution occurs

when some votes count for more than other votes in

determining the winner.

For example, in Saylor, this Court

acknowledged that ballot box stuffing could “dilut[e]

and destroy[] [legitimate votes] by fictitious ballots

fraudulently cast and counted.” 322 U.S. at 386; see



6 Racial gerrymandering cases, while also decided under the

Equal Protection Clause, do not focus on responsiveness.

Nonetheless, even in those cases this Court has held that

plaintiffs can “present statewide evidence in order to prove racial

gerrymandering in a particular district.” Ala. Legislative Black

Caucus v. Ala., 135 S. Ct. 1257, 1265 (2015).

11

also id. at 392 (Douglas, J., dissenting) (“[H]e who

bribes voters and purchases their votes corrupts the

electoral process and dilutes my vote as much as he

who stuffs the [b]allot box.”).

Gray v. Sanders, 372 U.S. 368 (1963)

recognized that office-specific dilution may occur not

only through fraud, by also as the result of de jure

rules for aggregating votes. Gray found Georgia’s

“county unit” system for aggregating the votes cast in

primary

elections

for

statewide

office

unconstitutional, on the ground that the system

diluted the votes cast by residents of more populous

counties.

Under the county-unit system, the

candidate who won the most counties prevailed in the

election, rather than the candidate who won the most

votes. The county-unit system thus gave outsized

influence to residents of lightly populated counties.

It is clear that the value at stake in Saylor and

Gray was majority rule. The class of citizens whose

votes were diluted consisted of those who, while

eligible to vote for the office in question, had to

surmount a higher hurdle than other eligible citizens

before their candidate could win. Since Saylor and

Gray, this Court has occasionally alluded to the officespecific form of vote dilution, e.g., Purcell v. Gonzalez,

549 U.S. 1, 4 (2006) (“Voters who fear their legitimate

votes will be outweighed by fraudulent ones will feel

disenfranchised.”), but the main stem of dilution

12

jurisprudence has concerned representation in multimember legislative bodies, which we discuss next.7

2.

Legislative-Body Dilution

Cases

In legislative-body dilution cases, dilution

occurs when an actually- or potentially-allied group of

voters has had its opportunity to win seats

“minimized or canceled out.”

Reynolds v. Sims, 377 U.S. 533 (1964),

famously extended Gray by holding that just as

dilution occurs when residents of densely populated

areas are disadvantaged by the vote-counting rules

for a particular office, so too does dilution at the level

of the legislative body occur when those same

residents are disadvantaged by malapportioned

legislative districts. Compare Gray, 372 U.S. at 379

(“How then can one person be given twice or 10 times

the voting power of another person in a statewide

election merely because he lives in a rural area or

because he lives in the smallest rural county?”), with

Reynolds, 377 U.S. at 562 (“[I]f a State should provide

that the votes of citizens in one part of the State

should be given two times, or five times, or 10 times

the weight of votes of citizens in another part of the

State, it could hardly be contended that the right to

vote of those residing in the disfavored areas had not

been effectively diluted.”).



7 Appellants’ argument that vote dilution cannot occur “[i]f

each vote is counted and counted equally,” Appellants Br. at 28,

mistakenly conflates the office-specific and legislative-body

dilution precedents.

13

In Reynolds, as in Gray, majority rule was the

fundamental constitutional value at stake, and

dilution was conceptualized as an interference with

majority rule. The only difference was scale: single

office (Gray), versus legislative body as a whole

(Reynolds). See Reynolds, 377 U.S. at 565 (“[T]o

sanction minority control of state legislative bodies,

would appear to deny majority rights in a way that

far surpasses any possible denial of minority rights

that might otherwise be thought to result.”)

(emphasis added); id. at 545 (noting that under the

challenged map, “only 25.1% of the State’s tot[al]

population resided in districts represented by a

majority of the members of the Senate, and only

25.7% lived in counties which could elect a majority of

the members of the House of Representatives”); see

also Michael W. McConnell, The Redistricting Cases:

Original Mistakes and Current Consequences,

24 Harv. J.L. & Pub. Pol’y 103 (2000) (agreeing with

the Reynolds Court that the constitutional injury in

the malapportionment cases was an injury to majority

rule, but arguing that the case should have been

decided on a Republican Form of Government rather

than an Equal Protection theory).

Implicit in Reynolds and Gray was the idea

that a legislative body is inadequately responsive to

the preferences of its constituents if the will of the

majority was thwarted. The responsiveness norm

was extended in Fortson v. Dorsey, 379 U.S. 433

(1965), decided just a year after Reynolds. In Fortson,

this Court recognized that legislative-body dilution

may also occur if the rules for translating votes into

seats are structured so as to render the body

inadequately responsive to a distinct political faction

14

within the citizenry, even if there is no infringement

of majority rule. Id. at 439 (“It might well be that,

designedly

or

otherwise,

a

multi-member

constituency apportionment scheme . . . would

operate to minimize or cancel out the voting strength

of racial or political elements of the voting

population.”). Fortson is thus the fount of this Court’s

racial and the partisan vote dilution jurisprudence.

In either type of dilution case—racial or partisan—

the inquiry into effects properly considers the entire

map of legislative districts, not just a single district in

isolation from the rest.8

a.

Racial Vote Dilution

Cases

Racial vote dilution occurs when members of

(1) a politically cohesive racial group suffer from (2) a

legally insufficient opportunity to wield voting

strength, i.e., to secure representation in, or

responsiveness from, the legislative body in question.



8 This is not to say that the district court erred in the present

case by “proceed[ing] on a district-by-district basis.” Common

Cause v. Rucho, 318 F. Supp. 3d 777, 861 (M.D.N.C 2018). In

doing so, the district court followed Gill’s instruction to evaluate

whether particular districts had been gerrymandered, id. at

821Ȃ27, in the sense of being purposefully drawn for partisan

advantage in ways that depart from traditional neutral criteria.

By requiring district-specific evidence of gerrymandering, Gill

usefully limits the reach of any remedy in a partisan vote

dilution case, focusing the redrawing of the map on specific

districts. But Gill’s requirement for some district-specific

evidence does not vitiate the court’s responsibility, at the

liability stage of a partisan gerrymandering case, to assess

representation or responsiveness under the map as a whole. The

district court properly did so in this case. See id. at 868.

15

When such dilution occurs, all members of the

politically cohesive racial group suffer it, not just

those who may reside in a particular (actual or

potential) single-member district.

See generally

Heather K. Gerken, Understanding the Right to an

Undiluted Vote, 114 Harv. L. Rev. 1663 (2001). This

simple idea ties together nearly 50 years of case law,

including cases from the 1970s and early 1980s which

were decided on an equal protection theory and more

recent cases applying the “results test” of Section 2 of

the Voting Rights Act. However, as this section of the

brief will explain, while the concept of racial vote

dilution as a jurisdiction-wide injury has been present

throughout this Court’s jurisprudence, it was

somewhat tacit in the early cases, owing largely to the

fact that the parties had failed to foreground the

matter. Cf. Johnson v. De Grandy, 512 U.S. 997,

1014Ȃ15 (1994) (analyzing dilution at geographic

scale agreed to by the parties in the court below). Not

until LULAC, 548 U.S. 399 (2006), did this Court

confront a properly presented argument over the

appropriate geographic scale. LULAC confirms the

dilution inquiry should be jurisdiction-wide.

This Court’s initial racial vote dilution cases

were decided under an equal protection theory, and

while they eschewed any right of minority voters to be

proportionally represented in legislative bodies, they

placed great weight on the responsiveness of the

legislative body (or intermediary party organizations)

to the minority community. See, e.g., Whitcomb v.

Chavis, 403 U.S. 124, 148Ȃ55 (1971) (acknowledging

trial court’s findings about the “distinctive

substantive-law interests” of the black community,

but holding that no unconstitutional dilution had

16

occurred because black voters were integrated into

and represented through the Democratic Party

coalition); White, 412 U.S. at 766Ȃ67 (finding

unconstitutional dilution of black vote where, inter

alia, few blacks had been elected and whitedominated slating organization “did not need the

support of the Negro community to win elections [and]

did not therefore exhibit good-faith concern for the

political and other needs and aspirations of the Negro

community”); id. at 768Ȃ69 (finding unconstitutional

dilution of Latino vote where, inter alia, Latinos had

only rarely been elected in a multi-member district

and the legislative delegation was “insufficiently

responsive to Mexican-American interests”); Rogers,

458 U.S. at 623Ȃ26 (finding unconstitutional dilution

where county officials

were “unresponsive and

insensitive to the needs of the black community,” and

blacks had been “prevented” from “effectively

participating in Democratic Party affairs and in

primary elections”).

Since legislatures serve the people primarily by

enacting legislation, and since bills require a majority

vote of the legislative body to pass, the emphasis on

responsiveness in the early dilution cases cuts

strongly in favor of a jurisdiction-wide dilution

inquiry. The evidence in these cases went well beyond

the circumstances of voters in one actual or potential

single-member district. Some of the cases concerned

multimember state legislative districts, and the

evidence in those cases spoke to the circumstances of

voters in the multimember districts, as well as official

discrimination (or its absence) statewide. See

Whitcomb, 403 U.S. at 131Ȃ32 (comparing conditions

in poor black neighborhoods with conditions

17

elsewhere in the multimember district); White, 412

U.S. at 765Ȃ67 (discussing history of official

discrimination against blacks in Texas); id. at 768

(observing that Mexican-Americans in county served

by multimember district and elsewhere in Texas had

long suffered discrimination). Other cases concerned

at-large elections for local legislative bodies—city

councils and county commissions—and here again the

evidence was jurisdiction-wide. See City of Mobile v.

Bolden, 446 U.S. 55, 71Ȃ74 (1980) (plurality opinion)

(noting local officials’ lack of responsiveness, but

holding that plaintiffs had failed to prove intentional

discrimination); Rogers, 458 U.S. at 623Ȃ27

(discussing, inter alia, lack of responsiveness from

county officials, and history of discrimination).

In 1980, this Court erected an additional

requirement for equal-protection vote dilution cases,

namely that plaintiffs prove the dilution was

purposeful. See City of Mobile, 446 U.S. 55. Congress

responded by amending Section 2 of the Voting Rights

Act to eliminate the intent requirement and return to

the White v. Regester framework. See Christopher S.

Elmendorf, Making Sense of Section 2: Of Biased

Votes, Unconstitutional Elections, and Common Law

Statutes, 160 U. Pa. L. Rev. 377, 404Ȃ417 (2012)

(contrasting static and dynamic glosses on Congress’s

codification of White); Thomas M. Boyd & Stephen J.

Markman, The 1982 Amendments To The Voting

Rights Act: A Legislative History, 40 Wash & Lee L.

Rev.

1347

(1983),

https://scholarlycommons.law.wlu.edu/cgi/viewconte

nt.cgi?article=2674&context=wlulr

(recounting

history of the 1982 amendments). Since 1982, this

Court’s racial vote dilution cases have all been

18

decided under Section 2 of the Voting Rights Act,

rather than the 14th Amendment.

The Senate Report accompanying Section 2 of

the Voting Rights Act itemized factors that courts

should evaluate in determining whether plaintiffs

had proved vote dilution. S. Rep. No. 97-417, at 28Ȃ

29 (1982). These factors, drawn from White and other

cases decided before City of Mobile, do not restrict a

court’s evaluation to a challenged district. Rather,

they expressly direct courts to examine conditions in

“the State or political subdivision” whose legislative

body is at issue in the case. See Thornburg v. Gingles,

478 U.S. 30, 44Ȃ45 (1986) (citing Senate Report

factors, including “the history of voting-related

discrimination in the State or political subdivision;

the extent to which voting in the elections of the State

or political subdivision is racially polarized; [and] the

extent to which the State or political subdivision has

used voting practices or procedures that tend to

enhance the opportunity for discrimination against

the minority group”). Indeed, in Gingles, this Court’s

first case interpreting the 1982 amendments, the

Court expressly relied on these factors and,

accordingly, examined both statewide evidence and

evidence specific to the multimember districts that

the plaintiffs sought to replace. Id. at 38Ȃ40

(describing, inter alia, history of discrimination in the

state, and “the extent to which blacks have been

elected to office in North Carolina, both statewide and

in the challenged districts”).

Gingles is best known today for establishing

the three-factor threshold showing that racial vote

dilution plaintiffs must make (potential remedial

19

district, minority cohesion, and white bloc voting). Id.

at 50Ȃ51. But equally important was the concurring

opinion of Justice O’Connor (joined by Chief Justice

Burger, Justice Powell, and Justice Rehnquist), which

lucidly explained the essential conceptual questions

that any theory of racial vote dilution must answer:

what is the proper measure of minority “voting

strength,” and what is the correct benchmark for an

undiluted districting plan, i.e., how much voting

strength should the minority community wield? See

Id. at 84Ȃ99 (O’Connor J., concurring in the

judgment). Though expressing concern that the

plurality opinion’s gloss on Section 2 of the Voting

Rights Act could lead to proportional representation,

Justice O’Connor acknowledged that “any theory of

vote dilution must necessarily rely to some extent on

a measure of minority voting strength that makes

some reference to the proportion between the

minority group and the electorate at large.” 478 U.S.

at 84.

Notably, the hypothetical with which Justice

O’Connor illustrated her points strongly supports a

jurisdiction-wide dilution inquiry, one which accounts

for the voting strength of all minority citizens who are

governed by the legislative body at issue, wherever

they may live. Justice O’Connor posited “a town of

1,000 voters that is governed by a council of four

representatives, in which 30% of the voters are black”

and vote as a bloc. Id. at 85. She then discussed

various districting scenarios, weighing the number of

seats the black community would control under each

scenario, the security of those seats, and the

likelihood that councilmembers elected from other

seats would be electorally responsive to black

20

interests. Id. at 85Ȃ89. It is clear from this discussion

that she understood dilution, in a legislative-body

case, as a phenomenon to be assessed at the level of

the legislative body as a whole (in this example, the

town council). In other words, the court must assess

the

legislative

body’s

representation

or

responsiveness vis-à-vis all members of the racialpolitical group in the polity, not just those in a given

district, and compare this with representation /

responsiveness afforded to the majority group.

This Court employed a similar hypothetical in

De Grandy, 512 U.S. at 1016Ȃ17, indicating that the

Court (like Justice O’Connor in Gingles) understood

that racial vote dilution must generally be measured

at the level of the legislative body as a whole because

the concept of racial vote dilution concerns the

political strength of all minority voters in the polity.9

LULAC made explicit that the geographic

scope of the dilution inquiry must be statewide if a

statewide map of districts is at issue. In LULAC, a

case about congressional districts, the state

defendants urged a regional approach, whereas



9 It is true that when the De Grandy Court turned from

hypotheticals to the evidence in the record, the Court assessed

“rough proportionality”—its benchmark for the absence of

dilution—in the general area of one county, rather than looking

statewide, even though the case was about state legislative

districts (not a county commission). See 512 U.S. at 1014Ȃ15,

1023. But the Court did so only because “the plaintiffs [had] . . .

passed up the opportunity to frame their dilution claim in

statewide terms.” Id. at 1022.



21

plaintiffs argued for a statewide inquiry.10 With the

question thus framed, this Court announced, “the

answer . . . is to look at proportionality statewide.”

548 U.S. at 437. Any smaller scale would be

“arbitrary,” and would run against the Senate Report

factors, which (as discussed above) point toward a

jurisdiction-wide inquiry. Id. at 437Ȃ38.

* * *

Although some language in recent cases might

be thought to evidence a narrower, district-specific

theory of racial vote dilution, that language is best

understood not as propounding such a theory, but

rather as recognizing (1) that Section 2 of the Voting

Rights Act affords certain protections that go beyond

the right to a racially undiluted vote; and/or (2) that

to have standing to bring a dilution case under

Section 2, plaintiffs must suffer an “injury in fact”

which is more personal and individuated than the

dilution injury suffered by a racial or political group.

Regarding the first point, it has long been

recognized that Section 2’s “results test” offers

protection against certain non-dilution injuries. See

Chisom v. Roemer, 501 U.S. 380, 408 (1991) (Scalia,



10 No one argued for a nationwide inquiry. A nationwide

dilution inquiry would have a certain logic in cases about

congressional districting, see Adam B. Cox, Partisan

Gerrymandering and Disaggregated Redistricting, 2004 Sup. Ct.

Rev. 409, but because Article I specifies that Members of

Congress are to be chosen by the “People of the several States”

(emphasis added), under rules and subject to voter qualification

determined by each state, it makes more sense to assess

congressional representation at the scale of individual states.

22

J., dissenting) (“If . . . a county . . . made it more

difficult for blacks to register than whites, . . . § 2

would [] be violated—even if the number of potential

black voters was so small that they would on no

hypothesis be able to elect their own candidate.”). The

existence of these additional protections, which can be

invoked by individual minority voters or small

clusters of voters, has occasionally obscured the

jurisdiction-wide nature of the vote dilution inquiry.

For example, in De Grandy, the Court declined

to recognize “rough proportionality” (its benchmark

for the absence of dilution) as a safe harbor, because,

among other things, that would allow the “rights of

some minority voters under § 2 [to] be traded off

against the rights of other members of the same

minority class.” See 512 U.S. at 1019. This passage

implies a conception of Section 2 of the Voting Rights

Act that includes an equal-treatment requirement.

The state may not arbitrarily privilege some minority

voters at the expense of others. But though Section 2

arguably disallows this, it is not on account of

dilution. So long as the minority group as a whole

wields the same political strength pre- and post“tradeoff of rights,” there has been no dilution. Cf.

LULAC, 548 U.S. at 511 (Roberts, J., concurring in

part) (“[I]t is [not] our role to make judgments about

which mixes of minority voters should count for

purposes of forming a majority . . . .”).

The majority opinion in LULAC has also

seeded some confusion, for after noting the departure

from statewide proportionality in that case might be

“deemed insubstantial,” Justice Kennedy wrote that

“that consideration would not overcome the other

23

evidence of vote dilution for Latinos in District 23.”

548 U.S. at 438 (emphasis added). Taken at face

value, this statement implies that vote dilution is a

district-specific rather than statewide matter—

contradicting most everything this Court has said

about dilution in legislative-body cases since

Reynolds, as well as most everything that Justice

Kennedy himself had said to that point of his LULAC

opinion. As Chief Justice Roberts sagely remarked in

dissent, “Whatever the majority believes it is fighting

with its holding, it is not vote dilution on the basis of

race or ethnicity.” Id. at 511 (emphasis added). The

Chief Justice was absolutely right. If LULAC’s

holding is correct, it is because Texas had empowered

some minority voters at the expense of others for no

legitimate reason,11 thus violating Section 2’s equaltreatment norm, not because the “Latinos in

District 23” constituted a distinct “protected class”

which could suffer “dilution” irrespective of the voting

strength that Latinos exercised elsewhere in the

state.

Justice Kennedy’s plurality opinion in Bartlett

v. Strickland, 556 U.S. 1 (2009), also contains some

language suggestive of a district-specific theory of

racial vote dilution. See id. at 19 (“[I]t is a special

wrong when a minority group . . . could constitute a

compact voting majority [of a single member district]



11 See 548 U.S. at 440Ȃ41 (explaining that “the reason for

taking Latinos out of District 23 . . . was to protect Congressman

Bonilla from a constituency that was increasingly voting against

him,” and distinguishing such bad incumbency protection from

legitimate efforts to “keep the constituency intact so the

officeholder is accountable for promises made or broken”).

24

but, despite racially polarized bloc voting, that group

is not put into a district [where it is a numerical

majority].”) (emphasis added). But Bartlett’s

holding—namely, that plaintiffs must show that they

could be drawn into a compact, numerically majorityminority district—is better understood as a standinglike limitation on the category of voters who may sue.

That the “special wrong” needed for standing in

a Section 2 dilution case is not the same as the

dilution which must be shown at the liability stage

becomes clear in Part III.C of Justice Kennedy’s

Bartlett opinion. There, Justice Kennedy indicates

that the representation or responsiveness secured by

clusters of black voters who may not comprise a

majority of a compact single-member district is

absolutely relevant to the liability-stage inquiry in a

dilution case: “[C]rossover voting patterns and []

effective crossover districts[, i.e., districts in which a

numerical racial minority joins forces with some

whites to elect mutually satisfactory candidates,]. . . .

[C]an be evidence [] of diminished bloc voting under

the third Gingles factor or of equal political

opportunity under the § 2 totality-of-the-circumstances

analysis.” 556 U.S. at 24 (emphasis added). The

italicized phrase is critical. It indicates that a

crossover district should count in the voting-strength

(rough proportionality) calculus, even if the minority

voters in that district would not have had standing to

bring a dilution claim if the state had lumped them

into a district with hostile whites. This apparent

oddity is a byproduct of the fact that the “special,”

district-specific injury needed for standing in a

Section 2 dilution case is not the same as the

jurisdiction-wide injury under Section 2 of the Voting

25

Rights Act that must be shown to prevail on the

merits of a racial vote dilution case.

***

In short, the genealogy of the racial vote

dilution cases shows that they protect the structural

values of representation and responsiveness.

Consideration of whether dilution has occurred and

whether these values have been abridged requires an

examination of representation/responsiveness vis-àvis all members of the politically cohesive racial group

in the jurisdiction, not just those in the particular

area where the plaintiffs live.

b.

Partisan Vote Dilution

Cases

Like the racial vote dilution cases, this Court’s

rather more limited partisan dilution jurisprudence is

rooted in Fortson v. Dorsey’s statement that an

electoral system could be unconstitutional if it

“operate[s] to minimize or cancel out the voting

strength of racial or political elements of the voting

population.” 379 U.S. at 439 (emphasis added).

The focus of the partisan vote dilution inquiry

“is essentially the same” as that of its racial sibling.

Davis v. Bandemer, 478 U.S. 109, 132 (1986)

(plurality opinion).12 The question in both types of



12 Unsurprisingly given their common point of origin, this

Court’s partisan vote dilution precedents borrow heavily from

the racial vote dilution cases. See, e.g., Gaffney v. Cummings,

412 U.S. 735 (1973) (relying on Whitcomb and White); Bandemer,



26

cases is whether a politically cohesive and distinctive

set of voters—defined by party identity and interests

in the partisan dilution cases, and racial identity and

racially distinctive political interests in the racial

dilution cases—has a fair opportunity to wield “voting

strength” vis-à-vis the legislative body in question. It

follows that in partisan dilution cases, courts should

gauge dilution by assessing the “voting strength” of

all of a party’s supporters who may participate in

elections for the representative body at issue—not

just those who reside in a particular district.

Consistent with a jurisdiction-wide analysis,

Justice White’s opinion in Bandemer described the

inquiry in the partisan case Gaffney as follows:

Just as clearly, in Gaffney v. Cummings,

where the districts also passed muster

under the Reynolds formula, the claim

was

that

the

legislature

had

manipulated district lines to afford

political groups in various districts an

enhanced opportunity to elect legislators

of their choice.

Although advising

caution, we said that “we must . . .

respond to [the] claims . . . that even if

acceptable populationwise [sic], the . . .

plan was invidiously discriminatory



478 U.S. at 131Ȃ33 (relying on racial precedents to hold that

partisan vote dilution claimants, like racial vote dilution

claimants, must show a degradation of their ability to influence

the political process as a whole).

27

because a ‘political fairness principle’

was followed . . . .”

478 U.S. at 124Ȃ25 (underlining emphasis added)

(alterations in original) (quoting Gaffney, 412 U.S. at

751Ȃ52).Thus, the Court recognized that the inquiry

runs beyond single districts and is motivated by the

structural issue of political fairness.

To be sure, a supplemental, district-specific

inquiry may be needed to establish that the plaintiff

has standing, or to determine whether certain

supporters of a political party were intentionally

gerrymandered. But this is separate from the inquiry

into dilutive effects. In a legislative-body dilution

case, be it racial or partisan, the effects inquiry must

focus on representation in, or responsiveness from,

the legislative body as a whole.

B.

Notwithstanding the Breadth of the

Structural Harms Caused by Vote

Dilution, Standing in Vote Dilution

Cases is District-Specific

Like cases in other areas, vote dilution cases

reflect the distinction between the values sought to be

protected and the category of individuals who can sue

to vindicate those values. Thus, even though, as

shown above, the inquiry into whether vote dilution

has occurred is statewide (in cases about statewide

maps of legislative districts), if the plaintiff does not

live in a gerrymandered district, he does not have

standing. 

28

In Baker v. Carr, 369 U.S. 186 (1962), the Court

held that voters in urban counties had standing to sue

for the alleged malapportionment of the Tennessee’s

General Assembly, in which rural districts tended to

be much less populous than urban ones.

The

plaintiffs alleged that their votes were being

“debase[d],” id. at 188, in violation of the Equal

Protection Clause, “vis-a-vis voters in irrationally

favored counties,” id. at 207–08. Given these

allegations, the Court held that the plaintiffs had

“alleged such a personal stake in the outcome of the

controversy,” id. at 204, as to give them standing.13

In so holding, the Court was careful to

distinguish between the merits of the plaintiffs’ case

and the question of standing. The Court expressly

stated that “[i]t would not be necessary to decide

whether appellants’ allegations of impairment of

their votes by the 1901 apportionment will,

ultimately, entitle them to any relief, in order to hold

that they have standing to seek it.” Id. at 208.

Baker’s analysis of standing was reaffirmed in

in Wesberry v. Sanders, 376 U.S. 1 (1964), which

involved allegations that disparities among the

populations of Georgia’s congressional districts

resulted in the “debasing [of] the weight of [plaintiffs’]

votes.” Id. at 4. “The reasons which led to these



13 Compare Lance v. Coffman, 549 U.S. 437, 441–42 (2007)

(plaintiffs lacked standing where their sole complaint was that

provision of Colorado Constitution prohibiting redistricting more

than once a decade violated United States Constitution; “This

injury is precisely the kind of undifferentiated, generalized

grievance about the conduct of government that we have refused

to countenance in the past.”).

29

conclusions

in

Baker

[regarding

standing,

jurisdiction, and justiciability] are equally persuasive

here.” Id. at 6.

Consistent

with

its

decisions

in

malapportionment cases, the Court held in United

States v. Hays, 515 U.S. 737 (1995), that plaintiffs

who challenged a congressional district as an

unconstitutional racial gerrymander, on the grounds

that it assigned voters to a newly-drawn blackmajority district on the basis of race, had to live in the

challenged district in order to have standing. Only

plaintiffs who lived in the challenged district, the

Court held, had suffered the personalized injury in

fact necessary to confer standing. Id. at 745. By

contrast, a plaintiff who lives outside such a district

“would be asserting only a generalized grievance

against governmental conduct of which he or she does

not approve,” which would not suffice to create

standing. Id.14

Given the decisions in Baker and Hays, it came

as no surprise that, in Gill, this Court held that

plaintiffs alleging vote dilution on partisan grounds

lacked standing because they had failed to prove that

they lived in an improperly drawn district. In that

case, the plaintiffs, voters who supported Democratic

candidates, alleged that Wisconsin’s legislative

districting plan diluted their voting power by



14 See also Wittman v. Personhuballah, 136 S. Ct. 1732,

1736–37 (2016) (members of Congress did not have standing to

challenge three-judge court’s decision holding that one district

was an unconstitutional racial gerrymander these members of

Congress neither lived in nor were running for election in that

district).

30

“cracking” large, cohesive groups of Democratic voters

into multiple districts in which they were a minority

and, where Democratic voter concentrations were too

large to “crack,” “packing” them into a small number

of overwhelmingly Democratic districts. 138 S. Ct. at

1923Ȃ24. The Court observed, however, that only one

of the named plaintiffs had testified at trial and that

he had conceded that the district in which he lived

would have a Democratic majority under any of the

competing districting plans offered by the parties. Id.

at 1924Ȃ25.

On these facts, the Court held that the

plaintiffs had failed to prove standing, because they

had not proved the requisite personal injury in fact.

Id. at 1929Ȃ33. Gill’s treatment of the standing issue

is thus consistent with this Court’s prior vote dilution

cases.

Appellants and the NRRT seek to make much

of the statement in Gill that “a person’s right to vote

is ‘individual and personal in nature,’” and

accordingly that “[t]o the extent the plaintiffs’ alleged

harm is the dilution of their votes, that injury is

district specific.” Id. at 1929Ȃ30 (citations omitted);

see Appellants’ Br. at 24 (discussing the concept

generally and quoting Gill, 138 S. Ct. at 1930); NRRT

Amicus Br. at 2, 29 (focusing on Gill’s discussion of

individual rights). But these statements concern

standingȄwhether the Gill plaintiffs were in the

category of people who can sue to vindicate the

structural right to responsiveness that underlies the

vote dilution cases.

Because the Court has

consistently treated the issue of standing as separate

from the merits, Gill’s remarks about the nature of

31

the named plaintiffs’ injuries say nothing about the

nature of the liability-stage inquiry in a partisan

dilution case.

CONCLUSION

For all the reasons stated above, amici curiae

Professors Christopher Elmendorf, Joseph Fishkin,

Bertrall Ross, Douglas Spencer, and Franita Tolson

respectfully submit that the lower court correctly

analyzed standing on a district-level basis, and

dilution on a statewide basis.

March 8, 2019

Respectfully submitted,

Mark A. Packman

Counsel of Record

Jenna A. Hudson

Samantha Miller

Alison Gaske

GILBERT LLP

1100 New York Avenue NW

Suite 700

Washington, DC 20005

(202) 772-2320

packmanm @gilbertlegal.com

Counsel for Professors

Christopher Elmendorf,

Joseph Fishkin, Bertrall

Ross, Douglas Spencer, and

Franita Tolson