Amicus Curiae Brief — Robert A. Rucho, et al., Appellants v. Common Cause, et al.
Supreme Court briefMar 8, 2019
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Nos. 18-422, 18-726
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
LINDA H. LAMONE, ET AL.,
Appellants,
v.
O. JOHN BENISEK, ET AL.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MARYLAND
BRIEF FOR BIPARTISAN GROUP OF CURRENT
AND FORMER MEMBERS OF THE HOUSE OF
REPRESENTATIVES AS AMICI CURIAE
IN SUPPORT OF APPELLEES
MEGHAN KALER
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich St.
New York, NY 10007
SETH P. WAXMAN
Counsel of Record
JONATHAN G. CEDARBAUM
ARI SAVITZKY
DAVID STOOPLER
ANURADHA SIVARAM
REBECCA COOPER
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
seth.waxman@wilmerhale.com
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................... iii
INTEREST OF AMICI CURIAE .................................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT................................................................ 5
ARGUMENT........................................................................ 7
I.
EXTREME PARTISAN GERRYMANDERING
UNDERMINES
THE
HEALTHY
FUNCTIONING OF THE HOUSE .................................... 7
A. Partisan Gerrymandering Subverts
Traditional Districting Criteria .......................... 7
B. Partisan Gerrymandering Devalues
Pragmatic
Problem-Solving
And
Constituent-First Representation In
The House ............................................................ 11
1.
Partisan gerrymandering creates
artificially uncompetitive districts ............ 12
2.
Partisan gerrymandering enhances
the influence of political parties at
the expense of independentminded
Members
and
the
constituents they serve ............................... 17
3.
Partisan gerrymandering harms
the House as an institution ......................... 18
C. Extreme Partisan Gerrymandering
Hurts The People Themselves .......................... 22
ii
TABLE OF CONTENTS—Continued
Page
II. EXTREME
GERRYMANDERING
IS
INCONSISTENT WITH THE NATURE OF
REPRESENTATION IN OUR FORM OF
GOVERNMENT.............................................................. 25
A. Members Of The House Are Direct
Representatives Of The People ........................ 25
B. Extreme Gerrymandering Distorts The
People’s Voice In Contravention Of The
Framers’ Vision ..................................................... 28
III. RECOGNIZING BASIC LIMITS ON EXTREME
PARTISAN
GERRYMANDERING
IS
APPROPRIATE AND CONSISTENT WITH THE
COURT’S ROLE IN OUR CONSTITUTIONAL
ORDER .......................................................................... 30
A. Extreme Partisan Gerrymandering
Represents A Breakdown In The
Political Process .................................................. 31
B. Basic Limits Are All That Is Needed To
Resolve The Breakdown ......................................... 34
CONCLUSION ................................................................. 35
iii
TABLE OF AUTHORITIES
CASES
Page(s)
Anderson v. Celebrezze, 460 U.S. 780 (1983) ................. 33
Arizona State Legislature v. Arizona
Independent Redistricting Commission,
135 S. Ct. 2652 (2015) ..................................... 26, 29, 31
California Democratic Party v. Jones, 530 U.S.
567 (2000) ..................................................................... 30
Colegrove v. Green, 328 U.S. 549 (1946) ......................... 34
Colorado Republican Federal Campaign
Committee v. FEC, 518 U.S. 604 (1996).................. 32
Cook v. Gralike, 531 U.S. 510 (2001)............................... 27
Davis v. Bandemer, 478 U.S. 109 (1986) ........................ 31
Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ........................ 7
Gaffney v. Cummings, 412 U.S. 735 (1973) ................... 30
Gill v. Whitford, 138 S. Ct. 1916 (2018) .......................... 32
Kirkpatrick v. Preisler, 394 U.S. 526 (1969) ................. 28
Larios v. Cox, 305 F. Supp. 2d 1335 (N.D. Ga.
2004) ............................................................................. 32
League of United Latin American Citizens v.
Perry, 548 U.S. 399 (2006) ............................... 8, 32, 33
McCulloch v. Maryland, 17 U.S. 316 (1819) ................. 26
Miller v. Johnson, 515 U.S. 900 (1995) ............................. 9
Powell v. McCormack, 395 U.S. 486 (1969) ................... 29
Reynolds v. Sims, 377 U.S. 533 (1964) ..................... 29, 30
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Schuette v. Coalition to Defend Affirmative
Action, 572 U.S. 291 (2014) ....................................... 32
Shaw v. Reno, 509 U.S. 630 (1993) .................................. 14
U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779 (1995) ............................................................... 26, 30
United States v. Carolene Products Co., 304
U.S. 144 (1938) ............................................................ 33
Vieth v. Jubelirer, 541 U.S. 267 (2004) ......... 29, 31, 33, 34
Wesberry v. Sanders, 376 U.S. 1 (1964) .......................... 26
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ....................... 32
DOCKETED CASES
Moreno v. Gessler, No. 11 Civ. 3461 (D. Colo.) ......... 8, 11
CONSTITUTIONAL PROVISIONS
U.S. Const.
Preamble ...................................................................... 26
art. I, § 2, cl. 1 .............................................................. 27
art. I, § 2, cl. 3 .............................................................. 27
art. I, § 3, cl. 1 .............................................................. 25
OTHER AUTHORITIES
Adams, Bruce, Toward a System of “Fair and
Effective Representation”: A Common
Cause Report on State and Congressional
Reapportionment (1977) ........................................... 15
v
TABLE OF AUTHORITIES—Continued
Page(s)
Aguilera, Abigail, Drawing the Line: Whitford
v. Gill and the Search for Manageable
Partisan Gerrymandering Standards, 86
U. Cin. L. Rev. 775 (2018) ......................................... 32
Akron Beacon Journal Staff, Ohio’s 14th
Congressional District race: Andrew Jarvi,
Dave Joyce, Michael Wager, Akron Beacon
Journal (Oct. 19, 2016), https://www.ohio.
com/akron/news/politics/ohio-s-14th-congre
ssional-district-race-andrew-jarvi-dave-joy
ce-michael-wager........................................................ 15
Amash, Justin, Twitter (May 25, 2017) .......................... 18
Berman,
Mitchell
N.,
Managing
Gerrymandering, 83 Tex. L. Rev. 781
(2005) ...................................................................... 18, 29
Bipartisan Policy Center, Commission on
Political Reform, Governing in a Polarized
America (2014), http://bipartisanpolicy.org/
wp-content/uploads/sites/default/files/files/
BPC%20CPR%20Governing%20in%20a%2
0Polarized%20America.pdf ....................................... 22
Blumenauer, Earl & Jim Leach, Redistricting,
a Bipartisan Sport, N.Y. Times (July 8,
2003), http://www.nytimes.com/2003/07/08/
opinion/redistricting-a-bipartisan-sport.html
?mcubz=0 ............................................................... 13, 20
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Brasch, Sam, Anti-Gerrymandering Effort
Sails Through The Colorado Capitol On Its
Way To The Ballot, Colorado Public Radio
(May 7, 2018), https://www.cpr.org/news/
story/anti-gerrymandering-effort-sails-thro
ugh-the-colorado-capitol-on-its-way-to-theballot ............................................................................. 34
Burke, Cathy, Rep. Rod Blum: I’ll Walk the
Walk on Term Limits, Newsmax (May 29,
2015), http://www.newsmax.com/NewsmaxTv/rod-blum-term-limits-iran/2015/05/29/id/
647607 ........................................................................... 12
Charles, Guy-Uriel & Luis E. Fuentes-Rohwer,
Judicial
Intervention
As
Judicial
Restraint, 132 Harv. L. Rev. 236 (2018) ................. 35
Congressional Institute, Congress of Tomorrow
Project - Introduction, https://www.congin
st.org/congress-of-tomorrow-project-introd
duction/ (visited Mar. 8, 2019) .................................. 14
Cox, Adam B., Partisan Gerrymandering and
Disaggregated Redistricting, 2004 Sup. Ct.
Rev. 409 (2004) ...................................................... 19, 23
Debates on the Federal Constitution (J. Elliot
ed., 1876) .......................................................... 27, 28, 29
Duncan, Dustin, Group seeks to change
redistricting, The Southern Illinoisan (Mar.
23, 2014), thesouthern.com/news/local/groupseeks-to-change-redistricting/article_9e9e1
bf7-04c3-5d74-bb5a-a89ed72dfb75.html .................. 24
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Eilperin, Juliet, The Gerrymander That Ate
America, Slate (Apr. 17, 2006), www.slate.
com/articles/news_and_politics/politics/2006/
04/the_gerrymander_that_ate_america.ht
ml .................................................................................. 21
Ely, John Hart, Democracy and Distrust: A
Theory of Judicial Review (1980) ............................ 33
Federalist No. 10 (Madison)............................................. 27
Federalist No. 37 (Madison)............................................. 27
Federalist No. 40 (Madison)............................................. 25
Federalist No. 52 (Madison)............................................. 27
Federalist No. 56 (Madison)....................................... 10, 29
Federalist No. 57 (Madison)....................................... 26, 29
Fleury, Kathleen & Virginia M. Wright, A
Chat With Olympia Snowe, Downeast (Oct.
2014), www.downeast.com/olympia-snoweinterview/ .................................................................... 12
Gallagher, Mike & Ro Khanna, Two
congressmen offer a bipartisan plan to
‘drain the swamp’, USA Today (June 1,
2017), https://www.usatoday.com/story/opi
nion/2017/06/01/two-congressmen-offer-bip
artisan-plan-drain-swamp/102189506/ ..................... 13
Gallup, Update: Americans’ Confidence in
Voting, Election (Nov. 1, 2016), http://
www.gallup.com/poll/196976/update-ameri
cans-confidence-voting-election.aspx ...................... 23
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Greene,
Jamal,
Judging
Partisan
Gerrymanders Under the Elections
Clause, 114 Yale L.J. 1021 (2005)............................. 29
Grossman, Perry, Fixing Gerrymandering
Doesn’t Just Make Elections More Fair,
Slate (Mar. 20, 2017) http://www.slate.com/
articles/news_and_politics/jurisprudence/2
017/03/fixing_gerrymandering_affects_who
_is_sent_to_office_and_how_they_govern.h
tml ................................................................................. 14
Harger, Jim, Is the GOP throwing Justin
Amash under the bus?, Michigan Live
(June 24, 2011), http://www.mlive.com/
news/grand-rapids/index.ssf/2011/06/post_1
78.html.......................................................................... 18
The Harris Poll, Americans Across Party
Lines Oppose Common Gerrymandering
Practices (Nov. 7, 2013), http://www.the
harrispoll.com/politics/Americans_Across_
Party_Lines_Oppose_Common_Gerryman
dering_Practices.html ............................................... 23
Hayden, Maddy, Pearce talks endangered
species, Trump, Carlsbad Current-Argus
(Aug. 18, 2016), http://www.currentargus.
com/story/news/local/2016/08/18/pearce-talks
-endangered-species-trump/88954948/ .................... 16
Hill Staff, Wamp backs Dem redistricting plan,
The Hill (June 23, 2005), http://www.the
hill.com/capital-living/food-and-drink/23053
-wamp-backs-dem-redistricting-plan ...................... 19
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Ingraham, Christopher, One easy way to end
gerrymandering: Stop letting politicians
draw their own districts, Wash. Post (June
2, 2014), https://www.washingtonpost.com/
news/wonk/wp/2014/06/02/one-easy-way-toend-gerrymandering-stop-letting-politician
s-draw-their-own-districts/?utm_term=.79
d19851ada4 .................................................................. 24
Israel, Gideon, A Matter of Principles: Mark
Meadows Speaks Conservatism, Mida (July
2, 2017), http://mida.org.il/2017/02/07/matterprinciples-mark-meadows-speaks-conserva
tism ............................................................................... 18
Issacharoff, Samuel & Pamela S. Karlan, Where
to Draw the Line?: Judicial Review of
Political Gerrymanders, 153 U. Pa. L. Rev.
541 (2004) ................................................................. 8, 23
Iyer, Sundeep, Redistricting and Congressional
Control Following the 2012 Election,
Brennan Center for Justice (Nov. 28, 2012),
https://www.brennancenter.org/analysis/re
districting-and-congressional-control-follo
wing-2012-election...................................................... 10
Johnson, Jenna, Is This How Maryland’s 3rd
Congressional District is Supposed to
Look?, Wash. Post (Sept. 21, 2014),
https://www.washingtonpost.com/local/mdpolitics/in-maryland-anti-gerrymanderingactivists-take-message-to-their-target/20
14/09/21/2f3dce36-4180-11e4-9a15-137aa015
3527_story.html?utm_term=.4b3cf65f916f ............. 10
x
TABLE OF AUTHORITIES—Continued
Page(s)
Joseph, Cameron, Jordan in redistricting
crosshairs after bucking Boehner, The Hill
(July 28, 2011), http://thehill.com/blogs/
ballot-box/house-races/174211-jordan-in-re
districting-crosshairs-after-bucking-boehner.......... 17
Lapowsky, Issie, Good News: Midterm Voters
Drew the Line on Gerrymandering, Wired
(Nov. 7, 2018), https://www.wired.com/
story/midterm-elections-2018-voters-drawgerrymandering-line/ ................................................. 24
Letter from T. Pickering to C. Tillinghast, Dec.
24, 1787, in 1 The Founders’ Constitution
252 (Philip B. Kurland & Ralph Lerner
eds., 1987) .................................................................... 26
Levinson, Daryl L. & Richard H. Pildes,
Separation of Parties, Not Powers, 119
Harv. L. Rev. 2311 (2006).......................................... 14
Mann, Thomas E. & Norman J. Ornstein, It’s
Even Worse Than It Looks (2012) ........................... 18
Marcos, Cristina, Lawmakers set up bipartisan
Problem Solvers Caucus for new Congress,
The Hill (Feb. 3, 2017), http://thehill.com/
blogs/floor-action/house/317764-bipartisanlawmakers-set-up-problem-solvers-caucusfor-new-congress ........................................................ 16
xi
TABLE OF AUTHORITIES—Continued
Page(s)
Pearson, Rick, House Members Blast Illinois’
New District Map in Court, Chi. Trib.
(Nov. 18, 2011), http://articles.chicago
tribune.com/2011-11-18/news/ct-met-illinoiscongressional-redistricting-20111118_1_newmap-democratic-map-roskam ..................................... 9
Pildes, Richard, Principled Limitations on
Racial and Partisan Redistricting, 106
Yale L. J. 2505 (1997) ................................................. 32
Polsby, Daniel D. & Robert D. Popper, The
Third Criterion: Compactness as a
Procedural Safeguard Against Partisan
Gerrymandering, 9 Yale L. & Pol’y Rev.
301 (1991) ..................................................................... 19
Potter, Trevor & Marianne H. Viray, Election
Reform: Barriers to Participation, 36 U.
Mich. J.L. Reform 547 (2003) .................................... 22
Press Release, Rep. Alan Lowenthal,
Congressman Lowenthal Leads Bipartisan
Amicus Brief to Supreme Court Defending
Voters’ and States’ Rights (Jan. 26, 2015),
https://lowenthal.house.gov/news/documen
tsingle.aspx?DocumentID=398562 .......................... 11
Press Release, Rep. Carlos Curbelo, Curbelo,
Deutch Welcome 50 Members to Bipartisan
Climate Solutions Caucus (July 25, 2017),
https://curbelo.house.gov/news/documentsi
ngle.aspx?DocumentID=1603 ................................... 16
xii
TABLE OF AUTHORITIES—Continued
Page(s)
Press Release, Rep. Jim Cooper, Cooper, Tanner Work to Stop Gerrymandering (Apr.
21, 2010) https://cooper.house.gov/mediacenter/press-releases/cooper-tanner-workto-stop-gerrymandering ............................................ 15
Raviv, Adam, Unsafe Harbors: One Person,
One Vote and Partisan Redistricting, 7 U.
Pa. J. Const. L. 1001 (2005) ................................. 13, 15
Reagan, Ronald, Remarks at the Republican
Governors Club Annual Dinner (Oct. 15,
1987), http://www.presidency.ucsb.edu/ws/?
pid=33559 ....................................................................... 5
The Records of the Federal Convention of 1787
(Farrand ed. 1911) ...................................................... 25
Ripon Advance News Service, Fitzpatrick
leads bipartisan resolution calling on
House to end political gerrymandering,
The Ripon Advance (May 11, 2017), https://
riponadvance.com/stories/fitzpatrick-leadsbipartisan-resolution-calling-house-end-poli
tical-gerrymandering/................................................ 21
Schuck, Peter H., The Thickest Thicket:
Partisan Gerrymandering and Judicial
Regulation of Politics, 87 Colum. L. Rev.
1325 (1987) ................................................................... 31
xiii
TABLE OF AUTHORITIES—Continued
Page(s)
Steinhauer, Jennifer, Hello, Illinois? Your
Congressman Is Getting Off the Phone,
N.Y. Times (Apr. 24, 2012), http://www.
nytimes.com/2012/04/25/us/politics/hello-illi
nois-rep-tim-johnson-is-on-the-line.html?m
cubz=0 ............................................................................ 9
Stewart, Kyle, Hurd Defends District Lines in
Court, Roll Call (July 17, 2017), https://
www.rollcall.com/news/politics/hurd-defendsdistrict-lines-court...................................................... 17
Tarr, G. Alan & Robert F. Williams,
Introduction, 37 Rutgers L.J. 877 (2006).......... 13, 15
Wood, Gordon S., The Creation of the
American Republic 1776-1787 (1998) ...................... 25
Zheng, Lili, Reform seeks public input on
redistricting in Md., WMDT (Nov. 1, 2016),
www.wmdt.com/news/maryland/reform-se
eks-public-input-on-redistricting-in-md-1/1
37894158 ....................................................................... 23
IN THE
Supreme Court of the United States
Nos. 18-422, 18-726
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
LINDA H. LAMONE, ET AL.,
Appellants,
v.
O. JOHN BENISEK, ET AL.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MARYLAND
BRIEF FOR BIPARTISAN GROUP OF CURRENT
AND FORMER MEMBERS OF THE HOUSE OF
REPRESENTATIVES AS AMICI CURIAE
IN SUPPORT OF APPELLEES
2
INTEREST OF AMICI CURIAE1
Amici curiae are current and former Members of
the House of Representatives from both major political
parties—20 Republicans and 20 Democrats. Amici hail
from over 20 States, representing every corner of our
Nation: from Florida to Maine; from the Great Lakes to
the Great Plains to the West Coast and in between.
Despite many political and regional differences, amici
are united in the belief that, in our system of government, power flows from the People to their political
representatives and not the other way around. Amici
are equally united in the belief that removing the most
extreme forms of partisan manipulation from the legislative redistricting process is essential to ensuring
principled and constituent-first representation.
Amici understand the nature of the redistricting
process from first-hand experience. They know what it
means to represent the people of a community in what
Madison called the “popular branch” of our federal government, and they have seen first-hand how districting
decisions affect the incentives a Member experiences.
Amici hope that by describing their experiences they
will help the Court understand why basic, enforceable
constitutional limits on extreme partisan gerrymanders
will make Congress better serve the People and thus
more faithfully fulfill its constitutional role.
1
No counsel for a party authored this brief in whole or part,
and no counsel or party made a monetary contribution to fund the
preparation or submission of this brief. No person other than the
amici curiae and their counsel made any monetary contribution to its
preparation and submission. All parties have filed blanket consents
with the Court.
3
Amici are the following Members and former
Members of the U.S. House of Representatives, in alphabetical order:
1. Rep. Mark Amodei (R-Nev.)
2. Rep. Don Beyer (D-Va.)
3. Fmr. Rep. Rod Blum (R-Iowa)
4. Rep. Earl Blumenauer (D-Or.)
5. Rep. Brendan Boyle (D-Penn.)
6. Fmr. Rep. William Brock (R-Tenn.)
7. Fmr. Rep. Russ Carnahan (D-Mo.)
8. Fmr. Rep. Mike Castle (R-Del.)
9. Fmr. Rep. William Clinger (R-Penn.)
10. Rep. Jim Cooper (D-Tenn.)
11. Fmr. Rep. Carlos Curbelo (R-Fla.)
12. Rep. Ted Deutch (D-Fla.)
13. Fmr. Rep. Vic Fazio (D-Cal.)
14. Rep. Brian Fitzpatrick (R-Penn.)
15. Fmr. Rep. Dan Glickman (D-Kan.)
16. Rep. Josh Gottheimer (D-N.J.)
17. Rep. Raul Grijalva (D-Ariz.)
18. Fmr. Rep. Richard Hanna (R-N.Y.)
19. Rep. Andy Harris (R-Md.)
20. Fmr. Rep. David Jolly (R-Fla.)
21. Rep. Marcy Kaptur (D-Ohio)
22. Rep. Dan Kildee (D-Mich.)
23. Rep. Peter T. King (R-N.Y.)
4
24. Fmr. Rep. Steven Kuykendall (R-Cal.)
25. Fmr. Rep. Larry LaRocco (D-Idaho)
26. Rep. Dave Loebsack (D-Iowa)
27. Rep. Alan Lowenthal (D-Cal.)
28. Fmr. Rep. Pete McCloskey (R-Cal.)
29. Rep. Greg Meeks (D-N.Y.)
30. Fmr. Rep. Connie Morella (R-Md.)
31. Rep. Chellie Pingree (D-Maine)
32. Rep. Tom Reed (R-N.Y.)
33. Fmr. Rep. Claudine Schneider (R-R.I.)
34. Fmr. Rep. Chris Shays (R-Conn.)
35. Fmr. Rep. Peter Smith (R-Vt.)
36. Fmr. Rep. Olympia Snowe (R-Maine)
37. Rep. Thomas Suozzi (D-N.Y.)
38. Fmr. Rep. Richard Swett (D-N.H.)
39. Fmr. Rep. Zach Wamp (R-Tenn.)
40. Fmr. Rep. Lynn Woolsey (D-Cal.)
5
INTRODUCTION AND SUMMARY OF ARGUMENT
Thirty years ago, addressing an annual gathering of
the Republican Governors Association, President
Ronald Reagan decried partisan gerrymandering.
President Reagan explained that what the country
needed was “an end to the antidemocratic and unAmerican practice of gerrymandering congressional
districts.”2 He was right. Yet, three decades later,
amici and their constituents continue to experience the
corrosive effects of partisan gerrymandering. Since
President Reagan’s call to action, both major political
parties have used partisan gerrymandering with evergreater frequency and efficiency, hurting voters of all
stripes and undermining faith in our institutions of
government. Amici therefore believe that the need is
greater than ever to enforce basic constitutional
boundaries on the worst forms of partisan gerrymandering.
This brief makes three overarching points.
First, extreme partisan gerrymandering harms our
political system, and harms the functioning of the
House of Representatives in particular. It puts raw
partisan position ahead of the maintenance of coherent
political communities and sensibly shaped districts
based on traditional districting criteria. A cascade of
negative results follows: artificially drawn “safe” districts tend to make general elections less competitive
and give party insiders, or small groups of “base” primary voters, much greater influence than the general
electorate; political parties gain power to obstruct independent, constituent-first representation; compro2
Reagan, Remarks at the Republican Governors Club Annual Dinner (Oct. 15, 1987).
6
mise becomes politically impossible even when Representatives on both sides of the aisle share areas of principled agreement and even when the voters want it;
and the People grow frustrated with the capacity of the
House to govern effectively, causing disillusionment
with and disengagement from our democratic processes.
Second, extreme partisan gerrymandering cannot
be reconciled with the Framers’ conception of the
House of Representatives as directly accountable to the
People. The premise of extreme partisan gerrymandering is that politicians choose their voters rather
than voters choosing their representatives.
That
stands on its head the Framers’ understanding that the
House was to be the institution most directly connected
to and representative of the People themselves.
Third, this Court has a crucial role to play in fixing
the problem. The cycles of extreme partisan gerrymandering are self-perpetuating, with partisanship and
mistrust begetting still greater partisanship and mistrust. This Court’s role in our constitutional order includes safeguarding the fundamental predicates of the
political process when necessary. The modicum of judicial involvement required here—recognizing basic constitutional safeguards against the worst partisan gerrymanders—will allow the political process to begin to
correct itself. Such involvement is fully consistent with
the Court’s constitutionally assigned role.
Partisan gerrymandering makes it more difficult
for Members to do the one job voters expect above all:
delivering results for their constituents. We can and
must do better.
7
ARGUMENT
I.
EXTREME PARTISAN GERRYMANDERING UNDERMINES
THE HEALTHY FUNCTIONING OF THE HOUSE
Members of the House must be free above all else to
follow the desires of their constituents. But partisan
gerrymandering creates obstacles to that fundamental
pursuit. It subverts traditional districting criteria that
tie members to coherent political communities. It undercuts the types of principled, bipartisan or nonpartisan
cooperation that most voters crave. And it makes the
People feel like their government is rigged against them.
A. Partisan Gerrymandering Subverts Traditional Districting Criteria
Traditional districting principles, such as compactness, regularity, and maintenance of communities of interest, have long played a critical role in fostering coherent political communities with shared identities,
concerns, and interests. See, e.g., Evenwel v. Abbott,
136 S. Ct. 1120, 1124 (2016). Extreme partisan gerrymandering subverts these traditional principles and the
local identities and communities they respect and promote. By definition, the dominant consideration in a
partisan gerrymander is benefit to the party drawing
the lines, even at the expense of the needs of existing
communities.
Traditional districting principles help ensure that
districts have coherent geographic and political identities, and thus help maintain a deep connection between
a Member and his or her constituents. As Representative Scott Tipton, Republican of Colorado, has explained, it is important for a district to have coherent
identity. Discussing his district, Representative Tipton
said that issues affecting the state’s rural communities,
8
such as water issues, give his district a common language and an “essence.”3 Representative Tipton credits the strong identity of his district as encouraging political competition and warding off needless partisanship. In Colorado’s Third Congressional District, he
explained, “we’ve elected Republicans, we’ve elected
Democrats.” “[I]rrespective of … heritage,” “irrespective of geography,” “irrespective of party[:] we elect
the person.”4
Traditional districting criteria also aid effective
representation by helping Members work more effectively with local officials in serving their constituents.5
In Colorado, that might mean working with county
governments, which administer major federal programs such as Medicaid and food stamps.6 In other
States, those principles might ensure strong relationships with the cities and towns that are included within
a Member’s district.
Without constitutional limits on partisan gerrymandering, traditional districting principles can be
subverted whenever a single political party gains control of the redistricting process and seeks to maximize
its political advantage no matter the cost. See, e.g.,
League of United Latin Am. Citizens (“LULAC”) v.
Perry, 548 U.S. 399, 481 (2006) (Stevens, J., concurring
in part and dissenting in part) (political gerrymander3
Tr. of Testimony of Rep. Scott Tipton (“Tipton Tr.”) 1321,
Moreno v. Gessler, No. 11 Civ. 3461 (D. Colo. Oct. 17, 2011).
4
Id. at 1334, 1338.
5
E.g., Tr. of Testimony of Rep. Michael Coffman (R-CO)
2573-2574, Moreno v. Gessler, No. 11 Civ. 3461 (D. Colo. Oct. 21,
2011).
6
Id. at 2572.
9
ing “subordinate[s] traditional politically neutral districting principles ... to political considerations.” (original brackets omitted) (quoting Miller v. Johnson, 515
U.S. 900, 916 (1995))). A map drawn solely to achieve
partisan ends undermines the benefits that come from
compact districts that respect existing geographic and
political boundaries such as county lines.
Consider, for example, Representative John Shimkus, Republican of Illinois. The 2011 redistricting process dramatically changed his district. Representative
Shimkus’s hometown of Collinsville, with a population
of just 25,000, was divided among three congressional
districts.7 And the area of his district was massively
expanded to include all or part of 33 counties. This geography makes it much more difficult for Representative Shimkus to interact with constituents across the
district—nearly impossible, for example, to hold town
halls in every community across the district in the same
way that he could in a district that was drawn using
traditional principles.8
Or consider amicus Representative Andy Harris,
Republican of Maryland. Representative Harris’s district had long been centered on Maryland’s Eastern
Shore, a coherent geographic, economic, and cultural
region defined by the Chesapeake Bay, which separates
it from the rest of the state. In 2010, as part of a map
7
Pearson, House Members Blast Illinois’ New District Map
in Court, Chi. Trib. (Nov. 18, 2011).
8
See also Steinhauer, Hello, Illinois? Your Congressman Is
Getting Off the Phone, N.Y. Times (Apr. 24, 2012) (former Rep.
Tim Johnson (R-IL) lamenting that Illinois’ “grossly gerrymandered congressional map” would have forced him into a district in
which “two-thirds of the voters have never been represented by”
him).
10
that was later challenged in one of the cases now before
the Court, 135,000 people from areas on the Bay outside
of Annapolis and Baltimore were pulled out of the district and replaced by about 115,000 people in north central Maryland, a landlocked area on the other side of
Baltimore along the Pennsylvania border. This change
served partisan ends—i.e., packing a higher percentage
of Republican voters into Representative Harris’s district—by diluting the district’s coherent, EasternShore-based identity.9
Districting changes that interfere with the relationships between Members and the communities they
serve are not fair to anyone—and especially not to the
voters.10
Traditional districting considerations are meant to
reinforce the role of representatives as leaders in and
members of particular political and geographic communities. That is how representation works best in our
democracy. As Madison wrote, a Representative
should possess “a local knowledge of their respective
districts” and remain “acquainted with the interests
and circumstances of his constituents.” Federalist No.
56. Representative Tipton echoed that idea in discuss9
Johnson, Is This How Maryland’s 3rd Congressional District is Supposed to Look?, Wash. Post (Sept. 21, 2014).
10
Partisan gerrymanders also frequently lead to incumbents
running in what are effectively new districts drawn with no particular goal beyond partisan ends. Sometimes that means that two
incumbents’ districts have been smashed together, eliminating
established political communities and forcing experienced Representatives to run against one another. See Iyer, Redistricting and
Congressional Control Following the 2012 Election, Brennan
Center for Justice (Nov. 28, 2012) (finding that, in 2012, 40 incumbents, evenly split by party, left office at least in part due to districting changes).
11
ing how he got into politics. He was taught that there
is a “public responsibility to participate,” which means
citizens going to “precinct caucuses and county assemblies, because that’s how the process works. You had an
opportunity to be able to see who was going to cast
your vote in the state legislature and Congress and the
city council.”11
Traditional districting principles reflect that sense
of participation and community identity. But extreme
partisan gerrymanders sacrifice those values in favor of
whatever map will most benefit the party in power.12
B. Partisan Gerrymandering Devalues Pragmatic
Problem-Solving And Constituent-First Representation In The House
Extreme partisan gerrymandering also rewires a
district’s internal political dynamics—pushing Members
towards the ideological poles, encouraging Members to
eschew principled, bipartisan compromise, and transferring power from voters to political parties. These shifts
undercut the cardinal rule of serving as a representative
of the People: Standing with one’s constituents, regardless of the partisan calculus.
11
12
Tipton Tr. 1315.
As Representative Rodney Davis (R-IL) has explained, extreme partisan gerrymanders make it unnecessarily difficult to
“form districts that better reflect the interests of [the] citizens.”
Press Release, Rep. Alan Lowenthal, Congressman Lowenthal
Leads Bipartisan Amicus Brief to Supreme Court Defending Voters’ and States’ Rights (Jan. 26, 2015).
12
1. Partisan gerrymandering creates artificially uncompetitive districts
One of the most baleful consequences of extreme
gerrymandering is that it entrenches “safe” districts,
that is, districts in which general elections are rendered
uncompetitive due to partisan line-drawing. This is
achieved through “packing” a disfavored party’s supporters into a small number of districts, thus creating
majorities for the dominant party in many or all of the
remaining districts and thus “cracking” the disfavored
party’s support in those districts. Regardless of the
statewide totals, the line-drawing party can use these
techniques to make itself the presumptive victor in a
majority of the state’s districts. As a result, as amicus
former Representative Rod Blum, Republican of Iowa,
explained, in the 2016 election cycle “you probably ha[d
only] 25-35 congressional districts that [we]re actually
competitive.”13 Amica former Senator and Representative Olympia Snowe, Republican of Maine, was even
more pessimistic in advance of the 2014 elections, explaining that “as few as seven seats are considered to
be tossups in this election” due largely to partisan gerrymandering.14
Representatives Mike Gallagher (R-WI) and Ro
Khanna (D-CA) have explained that politicians should
not be “allowed to gerrymander their districts and
choose their own voters” in this manner precisely because “[t]he less competitive a district becomes, the
13
Burke, Rep. Rod Blum: I’ll Walk the Walk on Term Limits, Newsmax (May 29, 2015).
14
Fleury & Wright, A Chat With Olympia Snowe, Downeast
(Oct. 2014).
13
more general elections become formalities.”15 In a
“safe” district, with the general election result foreordained, the focus of political activity shifts to the primary election of the dominant party. Power thus shifts
from the general electorate to party insiders with influence over the nomination process and to lower-turnout
primary elections that principally attract a relatively
small number of “base” voters.16 As a result, as amicus
Representative Earl Blumenauer (D-OR) explained in
an op-ed with then-Representative Jim Leach (R-IA),
“[p]rimary elections in districts that are overwhelmingly Republican produce candidates generally to the right
of the average Republican, while more liberal Democrats usually emerge from primaries in districts that
are overwhelmingly Democratic.”17
The elevation of primaries over the general election can effectively make Representatives responsive
to a minority rather than a majority of voters in their
districts. As Representatives Darin LaHood (R-IL)
and Dan Lapinski (D-IL), explained in 2017, “as a result
15
Gallagher & Khanna, Two congressmen offer a bipartisan
plan to ‘drain the swamp’, Journal Sentinel (June 1, 2017).
16
See Tarr & Williams, Introduction, 37 Rutgers L.J. 877, 878
(2006) (“Rather, legislators and legislative candidates are driven
to appeal to the most ideological members of their own parties,
because those partisans turn out disproportionately in party primaries, the only important races in a gerrymandered system.”).
17
Blumenauer & Leach, Redistricting, a Bipartisan Sport,
N.Y. Times (July 8, 2003); see also, e.g., Raviv, Unsafe Harbors:
One Person, One Vote and Partisan Redistricting, 7 U. Pa. J.
Const. L. 1001, 1068 (2005) (“[P]oliticians who are elected to office
only have to cater to voters from one party, and such politicians—
either out of conviction or out of political prudence—tend to fall
further from the ideological center than do politicians who have to
reach out to voters from both parties to get elected.”).
14
of years of gerrymandering congressional districts,
some of our elected public servants are winning their
offices by a minority of a minority of a minority.”18 This
dynamic can change Members’ political incentives. A
Member in a “safe” district has strong incentives to appeal to party insiders, or to highly partisan primary
voters who hold the key to re-election. As Representative David Price (D-NC) noted, those incentives “really
affect[] the way members behave once they come [to
Congress]. I’ve heard some guys say they might be
more moderate, but they just can’t be …. It all adds up
to pretty extreme behavior. The gerrymandering really exacerbated that.”19
The result is a phenomenon that amici see all too
often: intense pressure to be driven by partisanship
over all other considerations, leaving more moderate
voters—voters from the party that drew the district
lines, independent voters, and voters from the disfavored party (including those who could have been
cross-over voters)—feeling voiceless and unrepresented in the House.20 Amicus Representative Jim Cooper
18
Congress of Tomorrow Project - Introduction, Congressional Institute.
19
Grossman, Fixing Gerrymandering Doesn’t Just Make
Elections More Fair, Slate (Mar. 20, 2017).
20
This Court has recognized a similar dynamic in the context
of racial gerrymandering. Cf. Shaw v. Reno, 509 U.S. 630, 648
(1993) (“When a district obviously is created solely to effectuate
the perceived common interests of one [] group, elected officials
are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy.”). So have prominent legal scholars. See
Levinson & Pildes, Separation of Parties, Not Powers, 119 Harv.
L. Rev. 2311, 2335 (2006) (“The absence of a general election
15
(D-TN) laid bare the broad scope of the problem: Gerrymandering, he explained, “is not only unfair to independent voters, but all voters, because it creates a
Congress of highly-partisan representatives when most
Americans are centrists.”21
Competitive districts, by contrast, tend to produce
more constituent-centered representation. A competitive district, as Representative David Joyce (R-OH)
has explained, “forces you to evaluate each piece of legislation and not just answer to the fringes of the parties.”22 Winning in a politically competitive district
demands that Members actively engage with, and craft
policy positions designed to help, a broad cross-section
of their constituents from across both parties.23 Former Representative Steve Pearce, also a Republican,
noted that representing his competitive New Mexico
threat enables party activists, who turn out in disproportionate
numbers in primary elections and whose views typically reflect
the extremes of the party’s support, to select more partisan primary winners.”); see also Tarr & Williams, Introduction, 37 Rutgers L.J. at 878 (“Partisan gerrymandering encourages extreme
partisanship and extreme positions.”).
21
Press Release, Rep. Jim Cooper, Cooper, Tanner Work to
Stop Gerrymandering (Apr. 21, 2010) (emphasis added).
22
Akron Beacon Journal Staff, Ohio’s 14th Congressional
District race: Andrew Jarvi, Dave Joyce, Michael Wager, Akron
Beacon Journal (Oct. 19, 2016).
23
See Adams, Toward a System of “Fair and Effective Representation”: A Common Cause Report on State and Congressional Reapportionment 24 (1977) (“Safe districts remove the incentive to grant political concessions to constituent interests … or
create electoral coalitions [that] ensure representation of diverse
points of view.”); Raviv, Unsafe Harbors, 7 U. Pa. J. Const. L. at
1068 (arguing that safe districts encourage polarization in decisionmaking bodies).
16
district meant he needed to “talk to a lot of Democrats”
and to “go into areas that have never seen a Republican.”24 In those more competitive districts, Members
must actively work to represent their whole constituency, and citizens reciprocate with more robust civic
engagement.
For those same reasons, Members from more competitive districts are also freer to drive efforts to develop pragmatic results for constituents. Amici Republican Representative Tom Reed of New York and
Democratic Representative Josh Gottheimer of New
Jersey, for example, co-chair the Problem Solvers Caucus, which, as its name suggests, is designed to overcome partisan polarization and deliver practical solutions for the American people.25 Similarly, amicus former Republican Representative Carlos Curbelo cochaired the bipartisan Climate Solutions Caucus, which
explores policy solutions designed to address the impacts of our changing climate, with his fellow amicus
Florida Democratic Representative Ted Deutch.26
Representative Will Hurd (R-TX) perhaps best
summed up the benefits of competitive districts in July
2017 when he said: “My district is competitive, and
24
Hayden, Pearce talks endangered species, Trump, Carlsbad Current-Argus (Aug. 18, 2016).
25
See Marcos, Lawmakers set up bipartisan Problem Solvers
Caucus for new Congress, The Hill (Feb. 3, 2017).
26
Press Release, Rep. Carlos Curbelo, Curbelo, Deutch Welcome 50 Members to Bipartisan Climate Solutions Caucus (July
25, 2017) https://curbelo.house.gov/news/documentsingle.aspx?Doc
umentID=1603.
17
that’s a good thing … because it forces people to talk to
a broader sense of the community[.]”27
2. Partisan gerrymandering enhances the influence of political parties at the expense
of independent-minded Members and the
constituents they serve
Unfettered partisan gerrymandering also alters
the dynamic between Members and their political parties. Power shifts to party insiders, who dictate the literal party line and demand that Members abide by it,
irrespective of the preferences of a Member’s constituents. If an independent-minded Member breaks with
his or her party in order to follow the wishes of constituents, party insiders can use the next redistricting process to make re-election difficult for that Member or
eliminate his or her seat altogether. This power dynamic distorts the proper functioning of the House and
makes it less responsive to the People.
In amici’s experience, if partisan gerrymandering
remains unchecked, party insiders will use the redistricting process to threaten or punish independentminded Members. For example, in 2011, Representative Jim Jordan (R-OH) was threatened with the erasure of his district by party officials after he took independent stands.28 In the case of Representative Justin
Amash (R-MI), the party actually did redraw his district in an unsuccessful attempt to thwart his re-
27
Stewart, Hurd Defends District Lines in Court, Roll Call
(July 17, 2017).
28
Joseph, Jordan in redistricting crosshairs after bucking
Boehner, The Hill (July 28, 2011).
18
election because of commitment to faithfully representing constituents independent from party dictates.29
Using the redistricting process to pick winners or
enforce internal party discipline is anathema to Members’ faithful and independent representation of voters’
interests. As Freedom Caucus co-founder Representative Mark Meadows (R-NC) has emphasized: “There
should never be a punishment for voting the will of the
people. … To do otherwise would be to be putting party over people, and most Americans have a strong distaste for that.”30
3. Partisan gerrymandering
House as an institution
harms
the
More artificial “safe” seats and greater party influence over the districting process have helped produce
an unprecedented rise in partisanship in the House.
Partisan grandstanding and unprincipled obstruction
reign supreme while independent-minded, resultsoriented representation suffers.31
29
Harger, Is the GOP throwing Justin Amash under the
bus?, Michigan Live (June 24, 2011); see also Amash, Twitter (May
25, 2017) (“Gerrymandered by Republicans and the Michigan
Chamber of Commerce to prevent my re-election. It didn’t
work.”).
30
Israel, A Matter of Principles: Mark Meadows Speaks
Conservatism, Mida (July 2, 2017).
31
See generally Mann & Ornstein, It’s Even Worse Than It
Looks (2012) (discussing the rise of hyper-partisanship and “vehemently adversarial” politics); Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781 (2005) (discussing effects of “excessive
partisanship”); Issacharoff & Karlan, Where to Draw the Line?:
Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev.
541, 574 (2004) (“The result is not only less electoral accountability
19
Amici know that there are areas where Members
from different parties share common ground notwithstanding their deeply held beliefs. But even on issues
where bipartisan agreement exists, the “play-to-thebase” and “tow-the-party-line” dynamics that partisan
gerrymandering encourages often cause Members to
leave common-sense policy solutions on the table. Some
deem it more advantageous to attack the other side in
the media rather than sit down, grapple with real differences, and explore areas of genuine common ground that
exist.32 The bottom line, as amicus former Representative Zach Wamp, Republican of Tennessee, explained, is
that, “[a]s the political lines become more skewed, successful candidates are increasingly more interested in
political rhetoric than solutions and serving the public.”33
Amici can attest that the dynamics that flow from
hyper-partisan gerrymandering contribute to the growing partisan rancor in the House. As amicus Representative Blumenauer and former Representative
Leach have explained, as a result of gerrymandering,
but also more fractiousness in government and more difficulty in
forming legislative coalitions across party lines.”).
32
See Polsby & Popper, The Third Criterion: Compactness as
a Procedural Safeguard Against Partisan Gerrymandering, 9
Yale L. & Pol’y Rev. 301, 306-307 (1991) (“[T]he beneficiaries of
gerrymanders … are also less needful of being near the political
center of their districts. They are, in brief, more likely to be ideologues”); Cox, Partisan Gerrymandering and Disaggregated Redistricting, 2004 Sup. Ct. Rev. 409, 430 (2004) (arguing that “safe
seats produce more polarized representatives because, by definition, the median voter in a district that is closely divided between
the two major parties is more centrist than the median voter in a
district dominated by one party”).
33
Hill Staff, Wamp backs Dem redistricting plan, The Hill
(June 23, 2005).
20
“Members are less inclined to talk and cooperate, much
less compromise,” and “[t]he legislative agenda is
shaped more to energize the political base than to advance the common good.”34 For Members who occupy
artificial “safe” seats, the dynamics described above can
apply with particular force. And even for Members
who are not directly subject to such electoral disincentives, compromise is more difficult in an environment
where there are no limits to the pursuit of partisanship
in the shaping of electoral rules. Members who want to
work from a position of principled independence have
fewer potential partners on the other side.
Perhaps the saddest aspect of this dilemma is that,
as amici know well, lack of cooperation begets distrust,
which only further erodes the potential for cooperation.
Members who strike a difficult bargain on one issue develop trust that then allows them to work together
again—seeking out other areas where cooperation can
lead to common-sense solutions to the problems our
Nation faces. In earlier, less hyper-partisan eras, the
result was a virtuous cycle of building trust. In today’s
climate, a vicious cycle predominates, fostered in substantial part by extreme partisan gerrymandering.
None of this is to suggest that Members should reflexively embrace bipartisanship for its own sake.
Members of Congress can, will, and should hold principled beliefs that simply are not up for compromise.
What matters is that Members are guided only by their
judgment about how to deliver solutions for their constituents. When serving one’s constituents calls for
toeing the party line, a Member should do that; likewise, when serving one’s constituents calls for working
towards a bipartisan compromise, a Member should do
34
Blumenauer & Leach, Redistricting, supra.
21
that too. The problem with partisan gerrymandering is
that it encourages partisanship for its own sake. That,
amici strongly believe, is something no Member should
feel compelled to embrace.
The effects of extreme partisan gerrymandering
harm the House as an institution. The dramatic increase in partisanship in recent years has been accompanied by an equally dramatic decrease in major bipartisan legislative accomplishments that leaders on both
sides of the aisle were able to forge throughout much of
the 20th Century. As amicus Representative Brian
Fitzpatrick, Republican of Pennsylvania, has explained,
“[p]artisan gerrymandering has exacerbated electoral
complacency … and contributed to the growing divide
of partisanship that grinds the gears of government to
a halt.”35 The overall productivity of the House has declined as a result, diminishing the House’s role in our
government.
Virtually no one who has served in Congress actually supports limitless, unchecked partisanship in the
districting process. Even former Speaker of the House
Newt Gingrich has candidly acknowledged that, with
extreme partisan gerrymandering, each party “get[s]
to rip off the public in the states where they control,”
but “the public gets ripped off in [all] circumstances.”36
According to Gingrich, “[i]n the long run, there’s a
downward spiral of isolation.”37 On that point, amici all
35
Ripon Advance News Service, Fitzpatrick leads bipartisan
resolution calling on House to end political gerrymandering, The
Ripon Advance (May 11, 2017).
36
Eilperin, The Gerrymander That Ate America, Slate (Apr.
17, 2006).
37
Id.
22
agree: When partisan gerrymanders devalue general
elections and encourage partisan grandstanding for the
base over independent judgment or delivering results
for constituents, we all lose.
C. Extreme Partisan Gerrymandering Hurts The
People Themselves
The reduction in constructive dialogue among
Members and the increased perception that general
election outcomes are foreordained cause voters of all
stripes to lose faith in the electoral process. As one bipartisan commission including a number of distinguished former Members explained: “Th[e] overtly political [districting] process sows distrust among the
electorate about the fairness of the districts as drawn
and adds to the rancor between the political parties
when one feels that the other is assigning lines that
disadvantage their political opponents.”38
As more and more elections become reserved to
those core partisans who tend to vote in party primaries, many other citizens increasingly view their votes
as hollow gestures.39 Voters understand when, as amicus Representative Harris has explained, a districting
38
Bipartisan Policy Center, Commission on Political Reform,
Governing in a Polarized America 30 (2014).
39
Potter & Viray, Barriers to Participation, 36 U. Mich. J.L.
Reform 547, 575 (2003) (electoral competition “plainly has a positive effect on the interest and participation of voters in the electoral process” but “[i]t stands to reason that voter turnout decreases when voters feel that their votes are inconsequential. This
would occur most often when the outcome of an election appears
so clearly predetermined as to make the election a formality.”).
23
map is “not fair to citizens throughout the state.”40
Gerrymandered seats lead voters to feel left out of the
conversation entirely.41
As a result, faith in the integrity of elections has
dropped precipitously in recent years. The Gallup Poll
found that between 2009 and 2016, the percentage of
Americans who “have confidence” in the “honesty of
elections” tumbled from 59 percent to 30 percent, while
those lacking faith rose from 40 percent to 69 percent.42
A November 2013 poll found that 64 percent of respondents (including a majority of Republicans, Democrats, and Independents) believed that the redrawing
of districts is often used to take power away from voters.43
In light of these trends, proposed electoral reforms,
such as the introduction of independent or bipartisan
redistricting commissions, have proven increasingly
40
Zheng, Reform seeks public input on redistricting in Md.,
WMDT (Nov. 1, 2016).
41
See generally Issacharoff & Karlan, Where to Draw, 153 U.
Pa. L. Rev. at 574 (“Noncompetitive elections threaten both the
legitimacy and the vitality of democratic governance”); see Cox,
Partisan Gerrymandering, 2004 Sup. Ct. Rev. at 433 n.66 (discussing how efforts to gerrymander may cause the public “to see the
political process as somehow less legitimate and thereby skew the
incentives to participate”).
42
See Gallup, Update: Americans’ Confidence in Voting,
Election (Nov. 1, 2016). This rapid shift can be attributed only in
part to the highly partisan 2016 presidential election. As early as
2014, 59 percent of Americans said they lacked confidence in the
honesty of elections, while only 40 percent held such confidence—a
mirror image of the poll results from 2009. Id.
43
See The Harris Poll, Americans Across Party Lines Oppose Common Gerrymandering Practices (Nov. 7, 2013).
24
popular with voters across the political spectrum. In
the most recent midterm elections, for example, voters
in Michigan, Missouri, and Colorado overwhelmingly
passed ballot initiatives aimed at districting reform.44
Amici embrace the States’ role as laboratories for
redistricting reform. But amici also know that enacting
redistricting reform can be exceedingly difficult when
one party controls the machinery of the districting process. In Illinois, voters have sought an amendment to
the state constitution that would prevent any districts
that are “drawn to purposefully or significantly discriminate against or favor any political party or group,
and not considering the residence of any person.”45 The
dominant political party in the State has blocked this
proposed reform. Even for amicus Representative
Alan Lowenthal, who played a significant role in California’s transition to an independent commission, the
path to that result was long, difficult, and beset by partisan opposition from his own party.46
There must be basic limits on the ability of majorities to gerrymander for purely partisan gain. The
health of the House, especially its ability to serve the
People with clear-eyed independence, as the Framers
intended, depends on it.
44
E.g., Lapowsky, Good News: Midterm Voters Drew the
Line on Gerrymandering, Wired (Nov. 7, 2018).
45
Duncan, Group seeks to change redistricting, The Southern
Illinoisan (Mar. 23, 2014).
46
See Ingraham, One easy way to end gerrymandering: Stop
letting politicians draw their own districts, Wash. Post (June 2,
2014).
25
II. EXTREME GERRYMANDERING IS INCONSISTENT WITH
THE NATURE OF REPRESENTATION IN OUR FORM OF
GOVERNMENT
The Framers gave the House of Representatives a
special and critical role: to be the authentic voice of the
People. They intended Members of the House and the
communities they serve to share strong bonds. Extreme
partisan gerrymandering is inconsistent with these
basic principles on which our government was founded.
A. Members Of The House Are Direct Representatives Of The People
The Framers conceived of a government in which
institutions would reflect different forms of political authority. See Federalist No. 40 (Madison); see also, e.g.,
Wood, The Creation of the American Republic 17761787, at 553-562 (1998). The President and the Senate,
each indirectly elected to lengthy terms, were meant to
reflect aspects of constitutional monarchy and aristocracy, respectively. Id.47 But the House, then as now,
was to be the bastion of democracy—“the grand depository of the democratic principle of the Gov[ernmen]t,”
as George Mason put it, 3 The Records of the Federal
Convention of 1787, at 48 (Farrand ed. 1911) (“Farrand”).
The House’s direct connection to the People was
designed to be its essential quality. As the Court explained a generation ago, “[t]he House of Representatives … was to represent the people as individuals, and
on the basis of complete equality for each voter.” Wes47
Originally, the Constitution provided for Senators to be
chosen by state legislatures rather than by the People. See U.S.
Const. art. I, § 3, cl. 1. Direct election of Senators was not permitted until ratification of the 17th Amendment in 1913.
26
berry v. Sanders, 376 U.S. 1, 14 (1964). That direct
connection is so vital because, in our constitutional order, “all political power flows from the people.” Arizona State Legislature v. Arizona Indep. Redistricting
Comm’n, 135 S. Ct. 2652, 2677 (2015) (“AIRC”); see also, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779, 803, 821 (1995) (Framers created “a Federal Government directly responsible to the people”); id. at 839
(Kennedy, J., concurring) (“A distinctive character of
the National Government, the mark of its legitimacy, is
that it owes its existence to the act of the whole people
who created it.”); McCulloch v. Maryland, 17 U.S. 316,
404 (1819) (“[W]hen … it was deemed necessary to
[bring forth] an effective Government, possessing great
and sovereign powers and acting directly on the people,
the necessity of referring it to the people, and of deriving its powers directly from them, was felt and
acknowledged by all.”); accord U.S. Const., Preamble
(“We the People of the United States … do ordain and
establish this Constitution for the United States of
America.”).
The Framers repeatedly emphasized their vision of
a House of Representatives that was close to the People, directly responsive to them through the mechanism
of frequent and broad-based elections, and thus capable
of giving them a powerful voice in the Nation’s decision-making. “‘Who are to be the electors of the Federal Representatives?” Madison asked. “Not the rich
more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names,
more than the humble sons of obscure and unpropitious
fortune. The electors are to be the great body of the
people of the United States.” Federalist No. 57 (Madison); see also Letter from T. Pickering to C. Tillinghast,
Dec. 24, 1787, in 1 The Founders’ Constitution 252
27
(House members are the “immediate Representatives
of the People”); 2 Debates on the Federal Constitution
28-29 (J. Elliot ed., 1876) (“Elliot’s Debates”) (“The federal representatives will represent the people; they will
be the people.”) (J.C. Jones) (Mass.).
The Framers built these principles into the structure of Article I. They provided for direct elections for
the House “by the People of the several States” every
two years. U.S. Const. art. I, § 2, cl. 1. They ensured
that apportionment of House seats would be done “according to [the People’s] respective numbers” in the
States, id. cl. 3. And they provided that any person
who could vote for “the most numerous Branch of the
State Legislature” would be eligible to vote in elections
for the House as well. Id. cl. 1.
Frequent, broad-based elections are designed to
create a “direct line of accountability between the National Legislature and the people who elect it,” conceived
as broadly as possible. Cook v. Gralike, 531 U.S. 510, 528
(2001) (Kennedy, J., concurring). In the Framers’ thinking, it was “particularly essential that the [House] should
have an immediate dependence on, and an intimate sympathy with, the people.” Federalist No. 52 (Madison).
Competitive elections were “unquestionably the only
policy by which this dependence and sympathy can be
effectually secured.” Id. Those in power, Madison explained, were to “be kept in dependence on the people”
as a matter of “republican liberty.” Federalist No. 37.
Notably, the People’s representation in the House
was to serve one of the fundamental goals of our constitutional structure: elimination of excessive faction. See
Federalist No. 10 (Madison).
One imperative is thus clear from both the Framers’ statements and the constitutional design they es-
28
tablished: The role of the House in our constitutional
order—to reflect the will of the People—depends on
the electoral relationship between Members and the
People. The People’s ability to choose their representatives was an essential guarantee of both popular sovereignty and liberty. The Framers’ concerns resonate
across the centuries—and amici feel them every day as
part of our lived experience.
B. Extreme Gerrymandering Distorts The People’s
Voice In Contravention Of The Framers’ Vision
Extreme partisan gerrymandering threatens the
Framers’ vision of a directly accountable national legislature.
The Framers envisioned frequent, broad-based,
competitive House elections that would create a relationship of “dependence” and tie House Members closely to the People. The entire point of extreme gerrymandering is to undercut that tie in order to achieve a
narrow partisan political result. See, e.g., Kirkpatrick
v. Preisler, 394 U.S. 526, 537-538 (1969) (Fortas, J., concurring) (describing “gerrymandering” as “the deliberate and arbitrary distortion of district boundaries and
populations for partisan or personal political purposes”).
The Framers themselves repeatedly expressed concern that, through the manipulation of electoral districts,
“the House of Representatives should not really represent the people,” thereby undermining the republican
character of the nascent government. E.g., 4 Elliot’s
Debates 303 (C. Pinckney); accord 3 Elliot’s Debates 367
(Madison) (warning that improper “unequal” apportionment could “deprive[]” the people of “the right of suffrage”). They knew that, without some external check,
29
the rules of the political process could be manipulated.48
Their concern on this point makes sense in light of their
overall project, for “‘the true principle of a republic is,
that the people should choose whom they please to govern them.’” Powell v. McCormack, 395 U.S. 486, 540-541
(1969) (quoting 2 Elliot’s Debates 257 (Hamilton)).
This Court has described extreme gerrymandering
as incompatible with this fundamental principle of our
form of government. Extreme gerrymandering turns
the “true principle” of our Republic on its head, permitting politicians to choose the people whom they represent rather than the reverse. See AIRC, 135 S. Ct. at
2677 (noting “the core principle of republican government … that the voters should choose their representatives, not the other way around” (internal quotation
marks omitted)) (quoting Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781 (2005)). Partisan gerrymanders “[are incompatible] with democratic principles.” AIRC, 135 S. Ct. at 2658 (quoting Vieth v. Jubelirer, 541 U.S. 267, 292 (2004) (Scalia, J.) (plurality
opinion) and citing id. at 316 (Kennedy, J., concurring in
judgment)). They threaten the very notion of a representative government, in which, through the mechanism
of broad-based popular elections, “legislatures ... should
be bodies which are collectively responsive to the popular will.” Reynolds v. Sims, 377 U.S. 533, 565-566 (1964).
48
Compare Greene, Judging Partisan Gerrymanders Under
the Elections Clause, 114 Yale L.J. 1021, 1053-1054 (2005)
(“[B]ecause gerrymanders involve the rigging of elections themselves, the regular political process is not entirely trustworthy in
policing them”) with Federalist Nos. 56 & 57 (Madison) (discussing
rotten borough and pocket borough representatives in Parliament
as overcome by faction due to structural defects, and asserting that
broad elections by the whole People would remedy such defects).
30
This is not to say that politics has no place in districting. Far from it. It is an inescapable fact that “the
location and shape of districts” can determine “the political complexion of the area.” Gaffney v. Cummings,
412 U.S. 735, 753 (1973). Some variation in the shape of
districts is natural, so long as those variations “are
based on legitimate considerations incident to the effectuation of a rational state policy,” such as keeping
towns, counties, or cohesive political communities together. E.g., Reynolds, 377 U.S. at 579.
But true representation, consistent with the special
role of the House as the voice of the People, is diminished when district lines are designed to insulate Representatives from the People and instead to achieve a
preordained, partisan result. Cf. California Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (“Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to
band together in promoting among the electorate candidates who espouse their political views.”). Extreme
partisan gerrymandering impedes the “direct link” between the People and their representatives in the
House that the Framers intended, Thornton, 514 U.S.
at 803.
III. RECOGNIZING BASIC LIMITS ON EXTREME PARTISAN
GERRYMANDERING IS APPROPRIATE AND CONSISTENT
WITH THE COURT’S ROLE IN OUR CONSTITUTIONAL
ORDER
Because extreme partisan gerrymandering works
to skew a zero-sum districting process, there are few
political incentives that can entice a dominant party in
a given state to end the practice. The problem is thus
uniquely difficult to fix through the regular functioning
of the political process.
31
Action by this Court, to recognize constitutional
limits on hyper-partisan gerrymandering, is both essential and in keeping with the Court’s role in our constitutional order. The Court can do so without becoming entangled in endless political disputes; indeed,
merely articulating an outer boundary on the most extreme gerrymanders will do much to jumpstart corrective measures from within the political process itself.
A. Extreme Partisan Gerrymandering Represents A Breakdown In The Political Process
Members of this Court and others have repeatedly
expressed the concern that partisan gerrymanders distort the electoral process and result in the “frustration
of the will of a majority of the voters.” E.g., Davis v.
Bandemer, 478 U.S. 109, 133 (1986) (plurality op.); accord AIRC, 135 S. Ct. at 2677. Partisan gerrymanders
are also politically self-insulating. If a gerrymander is
done effectively, voters will find it difficult or impossible to punish the political party that carried out the
gerrymander, even if the decision to distort the political process is profoundly unpopular.49
This self-insulating quality means that, as gerrymanders become more effective, the “temptation to use
partisan favoritism in districting in an unconstitutional
manner will grow.” Vieth, 541 U.S. at 312 (Kennedy, J.,
49
See Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 Colum. L. Rev. 1325,
1328-1329 (1987) (partisan gerrymandering is “not merely [a] consequence[] of constitutionally suspect politics” but also a “fundamental cause[] of it”).
32
concurring).50 And, aided by technology, partisan gerrymandering has become far more effective in recent
years.51 See, e.g., Gill v. Whitford, 138 S. Ct. 1916, 1941
(2018) (Kagan, J., concurring) (“[T]echnology makes today’s gerrymandering altogether different from the
crude linedrawing of the past.”).52
This Court has long recognized its role in ensuring
the proper functioning of the political process. See, e.g.,
Schuette v. Coalition to Defend Affirmative Action, 572
U.S. 291, 312 (2014) (describing the right of citizens,
“through the political process, [to] act in concert to try
to shape the course of their own times and the course of
a nation”); see also, e.g., Yick Wo v. Hopkins, 118 U.S.
356, 370 (1886) (political rights are “fundamental” because they are “preservative of all rights”). The Court
has accordingly identified breakdowns in the operation
of the political process as warranting judicial intervention. See, e.g., LULAC, 548 U.S. at 440 (redistricting
measures that “‘hinder[ed] [certain groups’] ability to
participate effectively in the political process’” were
impermissible); see also, e.g., Colorado Republican Fed.
50
See also, e.g.¸ Aguilera, Drawing the Line: Whitford v. Gill
and the Search for Manageable Partisan Gerrymandering Standards, 86 U. Cin. L. Rev. 775, 777-778 (2018).
51
E.g., Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 Yale L. J. 2505, 2516 (1997) (late-twentiethcentury gerrymandering was more extreme than gerrymandering
in previous decades); see also, e.g., Larios v. Cox, 305 F. Supp. 2d
1335, 1342 (N.D. Ga. 2004) (per curiam) (due to redistricting software, maps that once took months to prepare could be generated
in a matter of hours).
52
While a few states have used the initiative and referendum
to enact districting reforms in recent years, such efforts still face
significant political headwinds, see supra p. 24—and they are not
even possible in the majority of states that lack the initiative and
referendum to begin with.
33
Campaign Comm. v. FEC, 518 U.S. 604, 644 n.9 (1996)
(Thomas, J. concurring in the judgment and dissenting
in part) (“What the argument for deference fails to
acknowledge is the potential for legislators to set the
rules of the electoral game so as to keep themselves in
power and to keep potential challengers out of it.”);
Anderson v. Celebrezze, 460 U.S. 780, 793 n.16 (1983)
(“[B]ecause the interests of minor parties and independent candidates are not well represented in state
legislatures, the risk that the … rights of those groups
will be ignored in legislative decisionmaking may warrant more careful judicial scrutiny.”); see also generally
United States v. Carolene Prods. Co., 304 U.S. 144, 152
n.4 (1938) (greater judicial scrutiny required where legislation “restricts those political processes which can
ordinarily be expected to bring about repeal of undesirable legislation”).53 Extreme partisan gerrymandering
is akin to other breakdowns in the electoral process
that the Court has identified as calling for judicial action. See, e.g., Vieth, 541 U.S. at 311-312 (Kennedy, J.,
concurring) (“Allegations of unconstitutional bias in apportionment are most serious claims, for we have long
believed that ‘the right to vote’ is one of ‘those political
processes ordinarily to be relied upon to protect minorities.’” (quoting Carolene Prods., 304 U.S. at 153 n. 4));
see also, e.g., LULAC, 548 U.S. at 423-443 (discussing
the use of gerrymandering to stymie the increasing
electoral power of one growing ethnic group in violation
of Voting Rights Act).
53
See also Ely, Democracy and Distrust: A Theory of Judicial Review 106 (1980) (“Courts must police inhibitions on ... political activity because we cannot trust elected officials to do so[.]”).
34
B. Basic Limits Are All That Is Needed To Resolve
The Breakdown
Until now, legislative map-makers have had no political incentive to police their own excesses, and no
standard by which to do so. Articulation of a constitutional outside limit in this area will force map-drawers
to curb the worst excesses and thus prevent some litigation before it starts. Recent events in Colorado exemplify this dynamic. There, partisan warfare and judicial intervention into the redistricting process in the
wake of the 2010 census culminated in the imposition of
a judge-drawn map, which in turn led both parties to
support creation of an independent commission.54 This
Court need not craft a comprehensive legal standard
that resolves all potential partisan gerrymandering
challenges. Even minimal guidance will provide impetus for restraint.55
Amici do not favor frequent or extensive judicial
intervention in the political process; indeed, amici appreciate this Court’s historical reluctance to enter the
“political thicket” surrounding redistricting. Colegrove
v. Green, 328 U.S. 549, 556 (1946) (plurality opinion); see
also Vieth, 541 U.S. 267 (2004) (plurality opinion). But
in light of the constitutional principles that animate our
role as Members of the House, and the grave threat
that hyper-partisan gerrymanders poses to our Republic, we need constitutional ground rules that ensure
54
See Brasch, Anti-Gerrymandering Effort Sails Through
The Colorado Capitol On Its Way To The Ballot, Colorado Public
Radio (May 7, 2018).
55
Indeed, while all amici agree that some constitutional
boundaries are essential to police the growing negative effects of
partisan gerrymandering, amici take no position on the effectiveness of the different specific legal tests that might be used for enforcing such boundaries.
35
basic standards of fairness and broad-based competition. That is possible without subjecting the districting
process to judicial second-guessing. Intervening, in a
measured way, to address a breakdown in the political
process, is entirely consistent with the Court’s role in
our constitutional order.56
Recognizing basic constitutional limitations on partisan gerrymandering will encourage political parties
and voters to change course and enable them to mend
the broken parts of our political process. This Court
should give the Nation that chance.
CONCLUSION
The judgments below should be affirmed.
Respectfully submitted.
MEGHAN KALER
SETH P. WAXMAN
WILMER CUTLER PICKERING
Counsel of Record
HALE AND DORR LLP
JONATHAN G. CEDARBAUM
7 World Trade Center
ARI SAVITZKY
250 Greenwich St.
DAVID STOOPLER
New York, NY 10007
ANURADHA SIVARAM
REBECCA COOPER
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
seth.waxman@wilmerhale.com
MARCH 2019
56
See, e.g., Charles & Fuentes-Rohwer, Judicial Intervention
As Judicial Restraint, 132 Harv. L. Rev. 236, 256 (2018) (suggesting
that the Court’s categorical noninvolvement in partisan gerrymandering cases will signal to political elites and the mass public that
the Court has taken a side in the political debate over the issue).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.