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

No. 18-422

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT RUCHO, et al.,

Appellants,

v.

COMMON CAUSE, et al.,

Appellees.

On Appeal from the United States District Court

for the District of North Carolina

BRIEF FOR THE STATES OF OREGON, CALIFORNIA,

COLORADO, CONNECTICUT, DELAWARE, HAWAII,

IOWA, KENTUCKY, MAINE, MASSACHUSETTS,

MICHIGAN, MINNESOTA, MISSISSIPPI, NEVADA, NEW

JERSEY, NEW MEXICO, NEW YORK, PENNSYLVANIA,

RHODE ISLAND, VERMONT, WASHINGTON, AND THE

DISTRICT OF COLUMBIA AS AMICI CURIAE

IN SUPPORT OF APPELLEES

ELLEN F. ROSENBLUM

Attorney General of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

JORDAN R. SILK

Assistant Attorney General

1162 Court Street

Salem, Oregon 97301-4096

Phone: (503) 378-4402

benjamin.gutman@doj.state.or.us

(Additional counsel listed on signature page)

QUESTION PRESENTED

Does a state engage in unconstitutional partisan

gerrymandering when it draws congressional districts

for the purpose of long-term antimajoritarian partisan entrenchment, the new districts have that effect,

and there is no justification for the districts other

than maximizing partisan advantage?

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

SUMMARY OF ARGUMENT ..................................... 2

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

A. Extreme partisan gerrymandering harms the

States and their citizens, and technological

advances have made it easier to accomplish. ......... 4

B. A purpose-and-effects test is manageable and

adequately accounts for the States’ legitimate

interests. .................................................................. 9

1. Invidious intent is required and is

satisfied when a map is chosen for the

purpose of entrenching a party against

any realistic majoritarian challenge. ............ 10

2. The test also demands long-term

partisan-entrenching effects that cannot

be

justified

by

other

legitimate

considerations................................................. 13

3. The test is not likely to invalidate many

districting maps, especially in view of the

steps many States have taken to prevent

extreme partisan gerrymandering. ............... 16

CONCLUSION........................................................... 20

ii

TABLE OF AUTHORITIES

Cases Cited

Akins v. Texas, 325 U.S. 398 (1945) ............................. 13

Brown v. Iowa Legislative Council, 490 N.W.2d 551

(Iowa 1992) ..................................................................... 10

Cooper v. Harris, 137 S. Ct. 1455 (2017) ..................... 13

Davis v. Bandemer, 478 U.S. 109 (1986) ....................... 8

Gaffney v. Cummings, 412 U.S. 735 (1973) ................ 13

Karcher v. Daggett, 462 U.S. 725 (1983)...................... 16

League of United Latin Am. Citizens v. Perry, 548

U.S. 399 (2006) .......................................................... 6, 16

Washington v. Davis, 426 U.S. 229 (1976) .................. 13

Constitutional and Statutory Provisions

Alaska Const., art. 6, § 8 ................................................. 20

Ariz. Const., art. 4, pt. 2, § 1(3) ..................................... 20

Cal. Const., art. 21, § 2(a)-(d) ......................................... 20

Cal. Const., art. 21, § 2(e) ............................................... 21

Colo. Const., art. 5, § 48(1)(a)-(d) .................................. 20

Conn. Const., art. III, § 6 ................................................ 22

Del. Code Ann. tit. 29, § 804(4) ...................................... 21

Fla. Const., art. III, §§ 20, 21(a) .................................... 21

iii

Haw. Const., art. 4, § 2 .................................................... 20

Haw. Rev. Stat. Ann. § 25-2(b)(1) ................................. 21

Iowa Code Ann. § 42.4(5) ................................................ 21

Me. Const., art. IV, Pt. 1, § 3 .......................................... 22

Me. Const., art. IV, Pt. 3, § 1-A ..................................... 20

Mont. Const., art. 5, § 14 ................................................. 20

Mont. Code Ann. § 5-1-115(3) ........................................ 21

N.J. Const., art. 4, § 3, 1 .................................................. 20

N.Y. Const., art. 3, § 4(c)(5) ............................................ 21

Or. Rev. Stat. § 188.010(2).............................................. 21

Penn. Const., art. 2, § 17(a)-(b) ...................................... 20

R.I. Pub. Laws 2011, ch. 100, § 1 .................................. 21

R.I. Pub. Laws 2011, ch. 106, § 1 .................................. 20

Wash. Const., art. 2 § 43(2) ............................................ 20

Wash. Const., art. 2, § 43(5) .......................................... 21

Rules

Mass. House R. 17 & 18A ............................................... 20

Mass. Sen. R. 12 ................................................................ 20

iv

Other Authorities

Catherine McCully, U.S. Bureau of the Census,

Designing P.L. 94-171 Redistricting Data for the

Year 2020 Census, The View from the States 5

(2014) ........................................................................... 9, 10

D. Theodore Rave, Politicians As Fiduciaries, 126

Harv. L. Rev. 671 (2013) ............................................. 11

Daniel R. Ortiz, Got Theory?, 153 U. Pa. L. Rev. 459

(2004) ............................................................................... 11

Kenneth F. McCue, California Inst. of Tech., Creating

California’s Official Redistricting Database 5 (2011)

........................................................................................... 10

Laura Royden & Michael Li, Brennan Center for

Justice, Extreme Maps 3 (2017) ................................... 8

Micah Altman & Michael McDonald, Promise &

Perils in Redistricting, 5 Duke J. Const. L. & Pub.

Pol’y, 69 (2010) ................................................................ 9

Neb. Leg. Res. 102 (1st Session 2011) .......................... 21

Richard L. Engstrom & Michael D. McDonald,

Quantitative Evidence in Vote Dilution Litigation:

Political Participation and Polarized Voting, 17

Urb. Law. 369 (1985) ................................................... 10

Sam Hirsch, The United States House of

Unrepresentatives: What Went Wrong in the Latest

Round of Congressional Redistricting, 2 Elec. L. J.

179 (2003) ......................................................................... 8

v

Samuel S.-H. Wang, Three Tests for Practical

Evaluation of Partisan Gerrymandering, 68 Stan.

L. Rev. 1263 (2016) ................................................... 6, 10

Theodore R. Boehm, Gerrymandering Revisited—

Searching for a Standard, 5 Ind. J. L. & Soc.

Equality 59 (2016) .................................................... 8, 11

Va. Exec. Order No. 31 (2011) ....................................... 21

vi

INTEREST OF THE AMICI STATES

This case is about how to strike the right constitutional balance between ensuring fair elections and respecting the normal political process. The amici

States are uniquely qualified to assist the Court in

striking that balance. We have a strong interest in

ensuring that our elections reflect core democratic

principles. Many of us are also defendants in redistricting litigation and have an equally strong interest

in ensuring that the courts apply reasonable and

manageable legal standards in cases like this one.

The States have a wealth of experience with redistricting and, as explained below, have taken a wide

variety of approaches to prevent invidious partisan

gerrymandering in that process. That is as it should

be in our federalist system, and we do not suggest

that any one approach to redistricting ought to be enshrined in constitutional law. But we are united in

our conclusion that the Constitution sets outer limits

on partisan gerrymandering, that those limits are judicially enforceable and do not intrude on the States’

legitimate interests, and that on the facts found by

the district court here, North Carolina’s congressional

districting map exceeded the outer limits of what is

constitutional.1

1 Although the district court in this case relied on multiple

bases to strike down the districting map, this brief focuses on

the arguments under the Equal Protection Clause.

2

SUMMARY OF ARGUMENT

Deliberately drawing districts for the purpose of

keeping one party in power for the long term, and

without any neutral justification for the result, has no

place in our political system. It discourages voter

participation, increases distrust of government, and

reduces the responsiveness of elected representatives.

Technological advances have made it easier than ever

for mapmakers to draw district lines solely to maximize the political power of a particular party.

A purpose-and-effects test is a manageable legal

standard that prohibits the most egregious examples

of partisan gerrymandering while still respecting the

legitimate considerations that inform redistricting

decisions. It requires proof of both invidious intent

and a partisan-entrenching result that cannot be explained by neutral considerations. A proper understanding of this standard’s limits should allay any

fear that the standard would invalidate numerous

state districting maps. The district court correctly

struck down North Carolina’s congressional districting map not because it failed one particular metric in

a single year, but because it was invidiously intended

to entrench a single party in power, it achieved that

purpose and likely would continue to do so for the life

of the plan, and the admitted goal of partisan entrenchment was the only explanation for the extreme

partisan skew of the map.

Indeed, North Carolina’s map maximized partisan

advantage to a greater extent than 99 percent of all

possible districting maps based on neutral criteria.

3

Although this Court has in the past struggled to identify “[h]ow much political motivation and effect is too

much,” Vieth v. Jubelirer, 541 U.S. 267, 297 (2004)

(plurality op.), that question should pose little difficulty where, as here, the evidence effectively amounts

to a mathematical demonstration that North Carolina

sought and obtained the maximum amount of partisan advantage possible and that all legitimate considerations were subordinated in pursuit of partisan

advantage.

A purpose-and-effects test leaves ample room for

States to continue to experiment with different approaches to redistricting. Many States have taken

steps to limit or prevent partisan abuse of the redistricting process, including having nonpartisan or bipartisan groups draw the maps, banning consideration of partisan affiliation or other data in the mapmaking process, or requiring supermajority votes.

The Constitution does not require any of these approaches, but they show that partisan politics is not

an inevitable feature of redistricting.

ARGUMENT

Voting forms the foundation of our representative

democracy. It serves as a vehicle for voicing preferences and for holding lawmakers accountable to constituents. No other mode of civic participation conveys the will of the people as well as voting. Extreme

partisan gerrymandering threatens the benefits that

our polity realizes from voting. The courts can and

should play a role in protecting those benefits.

4

A.

Extreme partisan gerrymandering harms

the States and their citizens, and technological advances have made it easier to

accomplish.

Gerrymandering has played a role in American

politics since the early eighteenth century. Vieth, 541

U.S. at 274–75 (plurality op.); Samuel S.-H. Wang,

Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263, 1266–67 (2016)

(describing historical examples). Both major parties

have engaged in partisan gerrymandering. See, e.g.,

League of United Latin Am. Citizens v. Perry, 548

U.S. 399, 410–13 (2006) (plurality op.) (describing

Texas plans that favored Democrats at one time and

Republicans at another).

But what is not a normal or accepted redistricting

practice is purposefully entrenching a single political

party in power for the long term under any realistic

electoral scenario, regardless of whether a majority of

voters support that party. Although this Court has

not yet announced a standard for assessing the legality of partisan gerrymandering, it has recognized

unanimously that extreme partisan gerrymandering

violates the Constitution. See Vieth, 541 U.S. at 292–

93 (plurality op.) (“We do not disagree with [the]

judgment” that “severe partisan gerrymanders [are

incompatible] with democratic principles”; “[t]he issue

. . . is not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts

to say when a violation has occurred”; “an excessive

injection of politics is unlawful”) (emphasis in original); id. at 312 (Kennedy, J., concurring in the judg-

5

ment) (“If a State passed an enactment that declared

‘All future apportionment shall be drawn so as most

to burden Party X’s rights to fair and effective representation, though still in accord with one-person, onevote principles,’ we would surely conclude the Constitution had been violated.”); id. at 326 (Stevens, J.,

dissenting) (“State action that discriminates against a

political minority for the sole and unadorned purpose

of maximizing the power of the majority plainly violates the decisionmaker’s duty to remain impartial.”);

id. at 343 (Souter, J., dissenting) (“[I]f unfairness is

sufficiently demonstrable, the guarantee of equal protection condemns it as a denial of substantial equality.”); id. at 356 (Breyer, J., dissenting) (describing “a

set of circumstances in which the use of purely political districting criteria could conflict with constitutionally mandated democratic requirements”); see also Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2568 (2015) (“Partisan gerrymanders, this Court has recognized, are incompatible with democratic principles.”) (quotation

marks and brackets in original omitted). And a majority of this Court has never abandoned the view, established in Davis v. Bandemer, 478 U.S. 109, 125

(1986), that those constitutional limitations are judicially enforceable. Vieth, 541 U.S. at 309–10 (Kennedy, J., concurring in the judgment); id. at 326 (Stevens, J., dissenting); id. at 343 (Souter, J., dissenting); id. at 356 (Breyer, J., dissenting).

Extreme partisan manipulation of the redistricting process is problematic because it can effectively

insulate a political party from any realistic attempt

by the populace to unseat it. Sam Hirsch, The United

6

States House of Unrepresentatives: What Went Wrong

in the Latest Round of Congressional Redistricting, 2

Elec. L. J. 179, 202 (2003). In other words, political

control may be determined by the mapmakers, not

the voters. Id.

Enormous improvements in computer technology

have revolutionized the way in which districts can be

drawn, allowing even more invidious partisan entrenchment. See Laura Royden & Michael Li, Brennan Center for Justice, Extreme Maps 3 (2017)2

(“Technology and a growing flood of money into the

redistricting process are, by broad consensus, only

making the situation” of partisan gerrymandering

“worse.”); Theodore R. Boehm, Gerrymandering Revisited—Searching for a Standard, 5 Ind. J. L. & Soc.

Equality 59, 60 (2016) (“[M]odern technology has substantially facilitated a temporary majority’s ability to

perpetuate its dominance of a legislative body.”). Today, mapmakers can draft and change many different

proposed maps in rapid succession using electronic

databases, computer software, and statistical techniques. Wang, supra, at 1267; see also Vieth, 541 U.S.

at 312 (Kennedy, J., concurring in the judgment)

(“Computer assisted districting has become so routine

and sophisticated that legislatures, experts, and

courts can use databases to map electoral districts in

a matter of hours, not months.”).

Along with improvements in computer technology,

“advances in communication technology have made it

Available at http://www.brennancenter.org/sites/default/

files/publications/Extreme%20Maps%205.16.pdf (last accessed

Feb. 11, 2019).

2

7

possible to gather fine-grained data to micro-target[]

district boundaries.”

Micah Altman & Michael

McDonald, The Promise & Perils of Computers in Redistricting, 5 Duke J. Const. L. & Pub. Pol’y 69, 77

(2010). States receive and store vast amounts of

highly detailed data to use in redistricting—including

data from the Census Bureau about race, ethnicity,

age, voting history, health coverage, and work status.

Catherine McCully, U.S. Bureau of the Census, Designing P.L. 94-171 Redistricting Data for the Year

2020 Census: The View from the States 5, 17–18, 22

(2014).3 Mapmakers can supplement the Census Bureau’s population information with election-related

data including on partisan affiliation and voting history. Kenneth F. McCue, California Inst. of Tech.,

Creating California’s Official Redistricting Database

5–8 (2011).4

Mapmakers can use mapping programs to evaluate the effects of drawing a line in one place or the

next block over, recalculating how the new districts

will affect a plan’s adherence to various redistricting

criteria. McCully, supra, at 8; see also Brown v. Iowa

Legislative Council, 490 N.W.2d 551, 552–53 (Iowa

1992) (describing how factors can be added or removed in computer generated redistricting maps);

Richard L. Engstrom & Michael D. McDonald, Quantitative Evidence in Vote Dilution Litigation: Political

Available at https://www.census.gov/content/dam/Census/

library/publications/2014/rdo/pl94-171.pdf (last accessed Feb. 11,

2019).

4

Available at http://statewidedatabase.org/d10/Creating%

20CA%20Official%20Redistricting%20Database.pdf (last accessed Feb. 11, 2019).

3

8

Participation & Polarized Voting, 17 Urb. Law. 369,

373–77 (1985) (explaining the use of regression analyses and other calculations to predict whether voters

belonging to particular racial minority group vote for

specific candidates). More detailed data and computer-based district mapping provide the means to create

maps that “give undue advantage to whichever political party controls redistricting.” Wang, supra, at

1269. Thus technological tools enable States to draw

and evaluate district boundaries “in exquisite details”

and “enhance the possibility that gerrymandered districts may be more durable now than they were even

ten years ago.” Id. at 1267–68.

Durable party entrenchment through extreme

gerrymandering causes real, identifiable harms to the

democratic system, and to individual voters. It undercuts the fundamental premise that our republican

form of government is representative. Moreover, by

allowing fewer competitive races, it discourages voter

participation, makes the public more distrustful of

government, and reduces the responsiveness of elected representatives. Boehm, supra, at 62; D. Theodore

Rave, Politicians As Fiduciaries, 126 Harv. L. Rev.

671, 684–85 (2013); Daniel R. Ortiz, Got Theory?, 153

U. Pa. L. Rev. 459, 486–87 (2004). And it subverts

the very purpose of periodic redistricting, which is to

make Congress more responsive—not less responsive—to voters. Ortiz, supra, at 476–77 (“Nearly every special feature of the House’s design” including direct election, regular reapportionment, and frequent

elections, “was meant to ensure that it, unlike the

other primary structures of the federal government,

was highly responsive to public sentiment.”).

9

Of course, there are entirely legitimate reasons

why a State may have noncompetitive elections. Voters may simply prefer the policies of one party over

the other overwhelmingly. Or voters with similar political views may tend to cluster in the same areas,

meaning that district lines drawn based on reasonable geographic considerations will favor one particular party. Or one party may be poorly organized,

leading it to field candidates who have no real chance

of garnering majority support. Those circumstances

by themselves are not constitutionally problematic.

On the contrary, they reflect the ordinary democratic

process working as it should to reflect the will of the

people.

What are problematic, however, are extreme districting maps that are invidiously intended to, and

do, ensure noncompetitive elections despite the absence of the kinds of normal political considerations

described above. Those maps inflict avoidable harms

on the democratic process and on individual voters,

and undermine the public’s trust in government. The

amici States have a strong interest in preventing

those harms.

B.

A purpose-and-effects test is manageable

and adequately accounts for the States’

legitimate interests.

Any test for unconstitutional partisan gerrymandering should require proof of both invidious intent

and the actual effect of extreme partisan entrenchment that is likely to endure through multiple election cycles and is inexplicable by neutral considera-

10

tions. The map at issue here fails that test, and the

district court’s judgment therefore should be affirmed. Properly applied, however, a purpose-andeffects test should not call into question the vast majority of state districting maps. Even a map under

which one party achieved an entrenched, long-lasting

partisan advantage would be constitutional unless

the map was adopted with invidious intent and the

effect could not be explained by neutral factors. Amici anticipate that such cases will be rare, and that

under a purpose-and-effects test, the States will continue to enjoy broad latitude in conducting redistricting.

1.

Invidious intent is required and is

satisfied when a map is chosen for

the purpose of entrenching a party

against any realistic majoritarian

challenge.

Under a purpose-and-effects test, it is not enough

for a plaintiff to show that a State’s districting map

has the effect of entrenching one political party in

power. Rather, the plaintiff must also show that this

was the purpose of adopting the map.

Invidious intent is a necessary component of the

constitutional standard. This Court’s equal protection jurisprudence holds that a law’s “disproportionate impact,” standing alone, is insufficient to show a

constitutional violation. Washington v. Davis, 426

U.S. 229, 239 (1976). Instead, “a purpose to discriminate” must be established. Id. (quoting Akins v. Texas, 325 U.S. 398, 403-04 (1945)); cf. Cooper v. Harris,

137 S. Ct. 1455, 1463-64 & n.1 (2017) (explaining the

11

required “legislative intent” showing for a claim of racial gerrymandering under the Equal Protection

Clause).

And not just any consideration of voters’ political

affiliation will establish invidious intent. In Gaffney

v. Cummings, 412 U.S. 735, 754 (1973), for example,

this Court drew a distinction between the use of political affiliation in the redistricting process to “provide

a rough sort of proportional representation in the legislative halls of the State,” and its use “to minimize or

eliminate the political strength of any group or party,” suggesting that the former was permissible and

that the latter was not.

When it comes to proof of invidious partisan intent, however, this case is not a close one. There is no

serious dispute that the map at issue here was adopted with the express purpose of maximizing Republicans’ partisan advantage to the greatest extent possible. Representative Lewis, one of the co-chairs of

North Carolina’s Joint Select Committee on Congressional Redistricting, made no secret that the goal of

the map was to manipulate elections to elect candidates from his favored party regardless of what the

majority of voters wanted in any given election: he

stated, “I think electing Republicans is better than

electing Democrats. So I drew this map to help foster

what I think is better for the country.” Pet. App. 24.

He stated further that the map was drawn “to give a

partisan advantage to 10 Republicans and 3 Democrats because [he] d[id] not believe it[ would be] possible to draw a map with 11 Republicans and 2 Democrats.” Pet. App. 22. And if those statements leave

12

any doubt as to the purpose of the map, Representative Lewis also “acknowledg[ed] freely that this would

be a political gerrymander,” which Representative

Lewis believed was “not against the law.” Id.; see also

Pet. App. 11, 17 (the “primar[y] goal” of co-chairs

Lewis and Rucho was “create as many districts as

possible” in which Republicans would likely win elections, and “partisanship considerations were the principal factor governing [the] placement of district lines

within split counties”).

In carrying out that goal, co-chairs Rucho and

Lewis commissioned Dr. Thomas Hofeller to draw the

2016 Plan. Dr. Hofeller used past election data to

draw a map that systematically “cracked” and

“packed” Democratic voters to maximize Republican

voting strength and minimize Democratic voting

strength. See Pet. App. 12-13 (“All told, Dr. Hofeller

testified that he redrew Districts 2, 3, 6, 7, 8, 9, 11,

and 13 to increase Republic voting strength in those

districts, and, to do so, he concentrated Democratic

voters in Districts 1, 4, and 12.”). Subsequent analyses of the map—which the district court credited—

revealed that it “creates 3 to 4 more Republican seats

than what is generally achievable” using neutral

map-drawing criteria, and that is ultimately is more

advantageous to Republicans than 99 percent of all

such districting plans. Pet. App. 210-11. Those analyses rest on precisely the same premise that guided

Dr. Hofeller in creating the map itself—i.e., the premise that “past voting behavior” as reflected in “past

election results” is “the best predictor” of future election outcomes. App. 11; see also App. 175–77 (so noting, and explaining the difficulty in reconciling de-

13

fendants’ argument that voter behavior should not be

inferred from party affiliation with defendants’ use of

precisely that assumption in creating the map for the

express purpose of maximizing partisan advantage in

future elections).

Because it incorporates a requirement of invidious

intent, a purpose-and-effects test should leave States

with plenty of leeway to experiment with different

approaches to redistricting. So long as a districting

plan is not adopted for the specific purpose of entrenching a single party in power, there is no constitutional violation. No sophisticated statistical analysis of a state’s maps is required.

2.

The test also demands long-term

partisan-entrenching effects that

cannot be justified by other legitimate considerations.

A purpose-and-effects test also requires proof that

the districting map was likely to have its intended

effect: that it would ensure that one party remained

in power under any likely electoral scenario regardless of shifts in voter allegiance. The court also would

have to find that this effect could not be explained by

any legitimate, neutral considerations, such as the

State’s political geography or its efforts to comply

with the Voting Rights Act. See Karcher v. Daggett,

462 U.S. 725, 740 (1983) (identifying as legitimate

considerations “making districts compact, respecting

municipal boundaries, preserving the cores of prior

districts, and avoiding contests between incumbent

Representatives”).

14

This attention to effects is also an appropriate

part of the constitutional standard. As in other kinds

of cases, a plaintiff must show “a burden, as measured by a reliable standard, on the complainants’ representational rights.” League of United Latin Am.

Citizens, 548 U.S. at 418 (plurality op.). Thus, a districting map is not an unconstitutional partisan gerrymander unless it in fact achieves extreme, longterm partisan entrenchment.

This means that States have ample room to try

different approaches to redistricting without running

afoul of the Constitution. Here too, the technologies

that make it easier to engage in invidious partisan

gerrymandering also give the States the tools to avoid

liability. States can and do use computer programs to

draw multiple maps that satisfy various legitimate

criteria, make detailed predictions about electoral results under a range of possible scenarios, and determine whether any particular map gives one party or

the other an unfair advantage.

And even if the map a State chooses does appear

to give advantage to a party, sophisticated software

can help the State determine if the advantage is

caused by political geography or some other legitimate consideration. In other words, it can show if the

predicted effects of the map on partisan entrenchment can be explained by neutral factors, in which

case the map should pass constitutional scrutiny. Cf.

Vieth, 541 U.S. at 312–13 (Kennedy, J., concurring in

the judgment) (noting that “new technologies may . . .

make more evident the precise nature of the burdens

15

gerrymanders impose on the representational rights

of voters and parties”).

Most importantly, if this Court endorses particular metrics as relevant to the effect prong of the test,

States will be able to model those metrics and ensure

that their maps stay within the bounds this Court

sets. Of course, no single metric is likely to satisfy

the effects prong by itself. As the district court explained, no one is asking the judiciary to enshrine

any particular statistical measure of partisanship into the Constitution. Instead, metrics such as the efficiency gap showing that a map is an extreme partisan

outlier merely “provide evidence that” it violates constitutional standards. Pet. App. 122. Thus, if a

State’s election results in a single year yielded a high

efficiency gap, that alone would not likely satisfy the

effects prong. And even if it did, the map still would

be upheld if the effect could be explained by something other than intentional partisan entrenchment,

such as that members of one party tend to cluster

more in particular parts of the State than do members of the other party, or that the State has large

numbers of uncontested elections. Regardless, the

same metrics that might be used as evidence in litigation can also be used prophylactically by States to

ward off constitutional challenges.

In this case, the district court analyzed the effects

of congressional districting map with proper deference to legitimate state interests. It found that the

map, by cracking and packing voters in particular

districts based on their likely support of Democratic

candidates, entrenched Republican representatives in

16

office. Pet. App. 187. And the district court further

found that that discriminatory effect is likely to persist in subsequent elections. Id. at 190. Those findings of the district court are amply supported by the

evidence of actual election results and expert analyses of those election results. Id. at 187–214 (discussing statewide evidence of discriminatory effects); id.

at 223–74 (discussing district-specific evidence of discriminatory effects). The statistical analyses showed

that the partisan entrenchment achieved by the map

would last at least through the life of the plan, even if

a majority of voters supported non-Republican candidates at historic levels. Id. at 190–97. The court also

found that the map’s party-entrenching effects could

not be explained by any legitimate state concerns or

neutral factors bearing on the apportionment process,

including North Carolina’s natural political geography. Id. at 215–22.

Thus, the district court correctly held that the

map was unconstitutional.

3.

The test is not likely to invalidate

many districting maps, especially in

view of the steps many States have

taken to prevent extreme partisan

gerrymandering.

Properly applied, a purpose-and-effects standard

will invalidate only the most extreme maps, like

North Carolina’s 2016 congressional districting map,

where all legitimate considerations are subordinated

to the single goal of long-term partisan entrenchment

against any realistic majoritarian challenge. Those

maps lie well outside our nation’s historical tradi-

17

tions, and we expect that they will be rare—especially

if this Court affirms here and thus makes it clear that

there are constitutional limits on partisan entrenchment.

More generally, however, exclusive or nearexclusive focus on partisan ends is not an inevitable

feature of redistricting. About half of the States have

taken formal steps that reduce or eliminate the influence of partisan considerations on redistricting. This

shows that partisan politics is not a necessary component of the redistricting process.

For example, many States require (or will soon require) congressional or state legislative districting

maps to be drawn by a nonpartisan or bipartisan

commission. See, e.g., Alaska Const., art. 6, § 8; Ariz.

Const., art. IV, pt. 2, § 1(3), 1(14); Cal. Const., art.

XXI, § 1; Colo. Const. art. 5, §§ 44–48.4; Haw. Const.,

art. IV, §§ 2, 9; Idaho Const. art. III, § 2; Mich. Const.,

art. IV, § 6; Mo. Const. art. III, § 7; Mont. Const., art.

V, § 14; N.J. Const., art. II, § 2, ¶ 1; N.J. Const., art.

IV, § 3, ¶ 1; N.Y. Const., art. III, § 5-b; Ohio Const.

art. XI, § 1; Ohio Rev. Code Ann. § 3521.01; Pa.

Const. art. II, § 17; Wash. Const., art. II § 43. Even

in a number of States where the legislature retains

authority over redistricting, the initial task of recommending a map for legislative approval is delegated to a bipartisan committee or “advisory commission.” See, e.g., Conn. Const., art. 3, § 6; Iowa Code

Ann. §§ 42.1, 42.5; Me. Const., art. IX, § 24; Mass.

Sen. R. 125; Mass. House R. 17 & 18A6; R.I. Pub.

Available at https://malegislature.gov/Laws/Rules/Senate

(last accessed Feb. 11, 2019).

5

18

Laws 2011, ch. 106, § 1; R.I. Pub. Laws 2011, ch. 100,

§ 1; Vt. Const., ch II, § 73; Vt. Stat. Ann. tit. 17, §§

1904-07. It is exceptionally unlikely that a districting

map drawn through a nonpartisan or bipartisan process would reflect an invidious intent to achieve longterm partisan entrenchment over other, permissible

goals.

Some states (including some which employ the

nonpartisan or bipartisan commissions discussed

above) also have chosen to limit the use of partisan

affiliation to draw district lines, as a matter of state

law. Some expressly bar state officials from drawing

district lines for the purpose of favoring or disfavoring

a political party. See, e.g., Cal. Const., art. XXI, §

2(e); Del. Code Ann. tit. 29, § 804(4); Fla. Const., art.

III, §§ 20, 21(a); Haw. Rev. Stat. Ann. § 25-2(b)(1);

Iowa Code Ann. § 42.4(5); Mont. Code Ann. § 5-1115(3); N.Y. Const., art. III, § 4(c)(5); Or. Rev. Stat. §

188.010(2); Wash. Const., art. II, § 43(5). Some also

prohibit officials from using political data—such as

past election results or voters’ party registrations—in

drawing districts. See, e.g., Iowa Code Ann. § 42.4(5);

Mont. Code Ann. § 5-1-115(3); see also Neb. Leg. Res.

102 (1st Session 2011). Arizona requires mapmakers

to favor competitive districts, and prohibits the use of

voting and party registration data from the initial

mapping phase. Ariz. Const., art. IV, pt. 2, § 1(14)(F),

1(15). And Idaho prohibits dividing counties for the

Available at https://malegislature.gov/Laws/Rules/House

(last accessed Feb. 11, 2019).

6

19

purpose of protecting a political party. Idaho Code

Ann. § 72-1506.

Finally, States also have adopted procedures that

make the adoption of extreme partisan gerrymanders

unlikely as a practical matter. For example, some require a two-thirds supermajority to approve redistricting plans, thus making it easier for a minority

party to block a plan that is unfair. Conn. Const., art.

III, § 6; Me. Const., art. IV, pt. 1, § 3; cf. N.Y. Const.,

art. III, § 4(b)(1)-(3) (supermajority required only if

both state legislative houses are controlled by the

same party).

None of these particular steps is required as a

matter of federal constitutional law. As discussed, in

most States the legislature draws the district maps.

These deliberative bodies can and routinely do redraw their maps free of any invidious purpose, and

without presenting the risk of long-term partisan entrenchment that necessitates a judicial response. A

constitutional standard prohibiting the most egregious forms of intentional partisan entrenchment

therefore would still afford the States considerable

leeway in their redistricting processes. It would also

vindicate the core democratic principles enshrined in

our Constitution.

20

CONCLUSION

The Court should affirm the district court’s judgment.

Respectfully submitted,

ELLEN F. ROSENBLUM

Attorney General of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

JORDAN R. SILK

Assistant Attorney General

1162 Court Street

Salem, Oregon 97301-4096

Phone: (503) 378-4402

benjamin.gutman @doj.state.or.us

March 8, 2019

(Counsel listing continues on next page)

XAVIER BECERRA

Attorney General

of California

1300 I Street

Sacramento, CA 94244

CLARE E. CONNORS

Attorney General

of Hawaii

425 Queen Street

Honolulu, HI 96813

PHILIP J. WEISER

Attorney General

of Colorado

1300 Broadway,

10th Floor

Denver, CO 80203

THOMAS J. MILLER

Attorney General

of Iowa

1305 East Walnut Street

Des Moines, IA 50319

WILLIAM TONG

Attorney General

of Connecticut

55 Elm Street

Hartford, CT 06106

ANDY BESHEAR

Attorney General

of Kentucky

700 Capitol Avenue,

Suite 118

Frankfort KY 40601

KATHLEEN JENNINGS

Attorney General

of Delaware

820 North French Street

Wilmington, DE 19801

AARON M. FREY

Attorney General

of Maine

6 State House Station

Augusta, ME 04333

MAURA HEALEY

Attorney General

of Massachusetts

One Ashburton Place

Boston, MA 02108

DANA NESSEL

Attorney General

of Michigan

P.O. Box 30212

Lansing, MI 48909

GURBIR S. GREWAL

Attorney General

of New Jersey

25 Market Street, 8th

Floor, West Wing

Trenton, NJ 08625

LETITIA JAMES

Attorney General

of New York

28 Liberty St., 23rd Floor

New York, NY 10005

KEITH ELLISON

Attorney General

of Minnesota

75 Rev. Dr. Martin Luther King Jr. Blvd.

St. Paul, MN 55155

AARON D. FORD

Attorney General

of Nevada

100 North Carson Street

Carson City, NV 89701

JIM HOOD

Attorney General

of Mississippi

Post Office Box 220

Jackson, MS 39205

HECTOR BALDERAS

Attorney General

of New Mexico

408 Galisteo Street

Santa Fe, NM 87501

JOSH SHAPIRO

Attorney General

of Pennsylvania

16th Floor, Strawberry

Square

Harrisburg, PA 17120

PETER F. NERONHA

Attorney General

of Rhode Island

150 South Main Street

Providence, RI 02903

THOMAS J. DONOVAN, JR.

Attorney General

of Vermont

109 State Street

Montpelier, VT 05609

ROBERT W. FERGUSON

Attorney General

of Washington

1125 Washington St. SE

Olympia, WA 98504

KARL A. RACINE

Attorney General for the

District of Columbia

441 4th Street, NW

Washington, D.C. 20001