Statement as to jurisdiction — Linda H. Lamone, et al., Appellants v. O. John Benisek, et al.

No. 18-_________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------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

-----------------------------------------------------------------JURISDICTIONAL STATEMENT

-----------------------------------------------------------------BRIAN E. FROSH

Attorney General of Maryland

STEVEN M. SULLIVAN*

Solicitor General

SARAH W. RICE

JENNIFER L. KATZ

ANDREA TRENTO

Assistant Attorneys General

200 Saint Paul Place

Baltimore, Maryland 21202

ssullivan@oag.state.md.us

(410) 576-6325

Attorneys for Appellants

DECEMBER 2018

*Counsel of Record

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1. Are the various legal claims articulated by the

three-judge district court unmanageable?

2. Did the three-judge district court err when, in

granting plaintiffs’ motion for summary judgment, it

resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence

in the light most favorable to the non-moving party,

and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary

objections?

3. Did the three-judge district court abuse its

discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election

before the next decennial census necessitates another

redistricting?

ii

PARTIES TO THE PROCEEDING

The following were parties in the court below:

Plaintiffs: O. John Benisek, Edmund Cueman, Jeremiah DeWolf, Charles W. Eyler, Jr., Kat O’Connor,

Alonnie L. Ropp, and Sharon Strine;

Defendants: Linda H. Lamone, State Administrator of Elections, and David J. McManus, Jr., Chairman

of the Maryland State Board of Elections.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING ......................

ii

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

v

JURISDICTIONAL STATEMENT ......................

1

OPINIONS BELOW.............................................

2

JURISDICTION ...................................................

3

CONSTITUTIONAL PROVISIONS INVOLVED .....

3

STATEMENT .......................................................

3

ARGUMENT ........................................................ 16

I.

The Three-Judge District Court Did Not

Set Forth a “Limited and Precise” Test for

Adjudicating Partisan-Gerrymandering

Claims ........................................................ 16

A. The Three-Judge Court’s Standards

Would Preclude Districting for Proportional Representation, Which This

Court Has Long Approved ................... 16

B. The Three-Judge Court Impermissibly

Assumes That Preexisting District

Configurations Are the Constitutional

Benchmark ........................................... 20

C. Neither of the Three-Judge Court’s

Dueling Standards Provides the Requisite Guidance to Legislators on How

to Redistrict Within Constitutional

Limits ................................................... 22

iv

TABLE OF CONTENTS—Continued

Page

II.

The Three-Judge Court Erred by Departing

from the Summary Judgment Standard

When It Resolved Disputes of Material

Fact and Made Credibility Findings ......... 27

III.

Plaintiffs’ Unreasonable Delay in Earlier

Phases of this Case Precludes Injunctive

Relief .......................................................... 35

CONCLUSION..................................................... 40

APPENDIX

United States District Court for the District of

Maryland, Memorandum Opinion, November

7, 2018 .....................................................................1a

United States District Court for the District of

Maryland, Judgment, November 7, 2018 .............78a

United States District Court of the District of

Maryland Three-Judge Court, Memorandum,

August 24, 2017.....................................................82a

United States District Court for the District of

Maryland, Opinion, August 24, 2016..................172a

United States District Court for the District of

Maryland, Notice of Appeal, November 15,

2018 .....................................................................226a

v

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986) .......................................................................28

Anne Arundel County Republican Cent. Comm.

v. State Admin. Bd. of Election Laws, 781

F. Supp. 394 (D. Md. 1991) ........................................5

Armstrong v. Exceptional Child Ctr., Inc., 135

S. Ct. 1378 (2015) ....................................................26

Baker v. Carr, 369 U.S. 186 (1962) .............................27

Benisek v. Lamone, 138 S. Ct. 1942 (2018) ............. passim

Bogan v. Scott-Harris, 523 U.S. 44 (1998) ..................25

Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d

233 (5th Cir. 1988) ...................................................32

Bryan v. United States, 524 U.S. 184 (1998) ..............26

Chandler v. Harris, 529 U.S. 1084 (2000) ..................36

Chapman v. Meier, 420 U.S. 1 (1975) .........................22

Chen v. City of Houston, 206 F.3d 502 (5th Cir.

2000) ........................................................................37

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388

(2006) .......................................................................35

Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md.

2011), aff ’d, 567 U.S. 930 (2012) ....................... 3, 4, 5

Fouts v. Harris, 88 F. Supp. 2d 1351 (S.D. Fla.

1999) ........................................................................36

Gaffney v. Cummings, 412 U.S. 735 (1973) .......... 17, 19

vi

TABLE OF AUTHORITIES—Continued

Page

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

Growe v. Emison, 507 U.S. 25 (1993) ..........................22

Hartman v. Moore, 547 U.S. 250 (2006) .....................27

Hunt v. Cromartie, 526 U.S. 541 (1999) ... 28, 29, 33, 34

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ........................................... 21, 24

Maryland Citizens for Representative Gen. Assembly v. Governor of Md., 429 F.2d 606 (4th

Cir. 1970) .................................................................36

Maryland Highways Contractors Ass’n, Inc. v.

Maryland, 933 F.2d 1246 (4th Cir. 1991) ...............30

Miller v. Johnson, 515 U.S. 900 (1995) .......................29

Monsanto Co. v. Geertson Seed Farms, 561 U.S.

139 (2010) ................................................................35

Moss v. Harris County Constable Precinct One,

851 F.3d 413 (5th Cir. 2017) ....................................27

NLRB v. Fruit Packers, 377 U.S. 58 (1964) ................26

Planned Parenthood of Kan. & Mid-Mo. v. Moser,

747 F.3d 814 (10th Cir. 2014) ..................................26

Reynolds v. Sims, 377 U.S. 533 (1964)........................35

Sanders v. Dooly County, Ga., 245 F.3d 1289

(11th Cir. 2001)........................................................36

Schwegmann Brothers v. Calvert Distillers

Corp., 341 U.S. 384 (1951) .......................................26

Shapiro v. McManus, 136 S. Ct. 450 (2015) ........... 9, 17

vii

TABLE OF AUTHORITIES—Continued

Page

Skolnick v. Illinois State Electoral Bd., 307

F. Supp. 691 (N.D. Ill. 1969) .............................. 36, 37

United States v. O’Brien, 391 U.S. 367 (1968) ............25

Vazquez v. Lopez-Rosario, 134 F.3d 28 (1st Cir.

1998) ........................................................................30

Vieth v. Jubelirer, 541 U.S. 267 (2004) ........... 16, 23, 24

Village of Arlington Heights v. Metropolitan

Hous. Dev. Corp., 429 U.S. 252 (1977) .....................26

White v. Daniel, 909 F.2d 99 (4th Cir. 1990)......... 36, 37

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... passim

STATUTES AND RULES

28 U.S.C. § 1253 ............................................................3

Fed. R. Civ. P. 56(c) ......................................................30

Fed. R. Evid. 801(c) .....................................................30

Fed. R. Evid. 802 .........................................................32

Md. Code Ann., Elec. Law §§ 8-7018-709 (2017

Repl. Vol.)...................................................................3

OTHER AUTHORITIES

Jowei Chen & David Cottrell, Evaluating Partisan

Gains from Congressional Gerrymandering:

Using Computer Simulations to Estimate the

Effect of Gerrymandering in the U.S. House, 44

Electoral Studies 329 (2016)...................................22

1

JURISDICTIONAL STATEMENT

In this case, a fractured three-judge district court

adopted unprecedented and unworkable theories of

First Amendment retaliation in striking down Maryland’s 2011 congressional districting plan on the basis

of partisan gerrymandering. Not only do the court’s

three separate opinions suffer from significant errors,

the court’s injunction imposes “traditional criteria for

redistricting” not found in the Constitution nor any

statute, and places unprecedented restrictions on what

information legislators may consider in redrawing

district lines. Given the multiple and substantially

contradictory opinions and theories generated by the

three-judge district court, this Court’s plenary review

is needed to supply Maryland’s officials and legislators

with essential guidance on what they are permitted to

consider in crafting a congressional districting plan.

Last term, on appeal in this same case, this Court

undertook plenary review of the three-judge court’s

denial of plaintiffs’ request for preliminary injunctive

relief. The lower court had denied relief because it

could not conclude that plaintiffs were likely to succeed

on the merits and because then-pending Gill v. Whitford, 138 S. Ct. 1916 (2018), might “set forth a ‘framework’ by which plaintiffs’ claims could be decided[.]”

Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018). This

Court affirmed the order denying preliminary relief on

grounds that included plaintiffs’ “years-long delay” in

pursuing injunctive relief, their failure to plead their

First Amendment claim until 2016, and the reasonableness of withholding relief “to wait for this Court’s

ruling in Gill before further adjudicating plaintiffs’

2

claims” and thereby avoid “a needlessly ‘chaotic and

disruptive effect upon the electoral process.’ ” Id. at

1944, 1945 (citation omitted). As it turned out, however, this Court’s decision in Gill did not articulate the

correct standard to apply in evaluating a partisangerrymandering claim.

On remand from this Court, the three-judge court

decided already-pending cross-motions for summary

judgment. By that time, this Court had been asked to

review a partisan-gerrymandering decision of a North

Carolina three-judge court, which had recognized and

adjudicated four distinct varieties of a partisangerrymandering claim. Rucho v. Common Cause, No.

18-422. Nevertheless, the court below forged ahead,

granted summary judgment to plaintiffs, and entered

a permanent injunction against Maryland’s 2011 plan.

The court produced two incompatible majority opinions, and a third opinion concurring in both. In the process, the court recognized a new, additional type of

injury for the retaliation claim it had earlier recognized: denial of First Amendment associational rights.

------------------------------------------------------------------

OPINIONS BELOW

The district court’s summary judgment opinions

are available in the Westlaw database at 2018 WL

5816831. App. 1a-77a. Previous opinions are reported

at 266 F. Supp. 3d 799 (D. Md. 2017), and 203 F. Supp.

3d 579 (D. Md. 2016). App. 82a-171a, 172a-225a.

------------------------------------------------------------------

3

JURISDICTION

The district court issued its decision on November

7, 2018. Appellants filed their notice of appeal on November 15, 2018. This Court has jurisdiction under 28

U.S.C. § 1253.

------------------------------------------------------------------

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States Constitution provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.”

------------------------------------------------------------------

STATEMENT

1. This case is the last of several challenging

Maryland’s 2011 congressional districting plan,

enacted in light of the 2010 decennial census. 2011 Md.

Laws Spec. Sess. ch. 1, codified as Md. Code Ann., Elec.

Law §§ 8-7018-709 (2017 Repl. Vol.). In June 2012, in

an earlier case, this Court summarily affirmed a threejudge court’s decision rejecting both racialgerrymandering and partisan-gerrymandering claims.

Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011),

aff ’d, 567 U.S. 930 (2012). Although the 2011 plan

made “it more likely rather than less likely that a Democrat . . . is able to prevail in the general election,” Dkt.

4

186-2, 43:7-10, in Fletcher, the three-judge court rejected a claim that “the redistricting map was drawn

in order to reduce the number of Republican-held congressional seats from two to one by adding Democratic

voters to the Sixth District.” Id. at 903.

Now, more than six years after Fletcher, a separate

three-judge district court has reached the opposite

conclusion and found that state officials “specifically

intended to flip control of the Sixth District from Republicans to Democrats and then acted on that intent.”

App. 51a. In reaching that conclusion, the district court

rejected evidence that the redrawn map met nonpartisan legislative goals and priorities, responded to

concerns expressed by Sixth District voters and candidates, and returned that district to a more traditional

configuration. Rejecting that evidence as “post-hoc

rationalization,” App. 55a, the district court found

more believable plaintiffs’ preferred narrative that

Democrats designed the map with “a narrow focus” to

“ensure the election” of an additional Democratic representative in the State’s congressional delegation.

App. 48a. That intent, the court believed, established

that plaintiff Republican voters in the Sixth District

had met their burden of proving a First Amendment

retaliation claim of harm to their representational and

associational interests. App. 56a, 64a.

2. It is undisputed that Maryland’s 2011 congressional districting plan was the culmination of a

months-long process of drafting work by State legislative staffers, followed by public hearings. Dkt. 104

¶¶ 18-23, 26; Dkt. 186-2, 53:12-54:7. The final map met

5

significant state legislative goals related to the First,

Fourth, Seventh, and Eighth Districts.

a. First, the 2011 plan eliminated a geographic

anomaly, first introduced in Maryland’s 1991 congressional districting plan and continued in the 2002 plan.

That is, beginning in 1991, Maryland’s First District

had contained portions of both the eastern and western

shores of the Chesapeake Bay, separated by no less

than four miles of water and connected only by the

Chesapeake Bay Bridge. This configuration protected

an incumbent Republican representative, who had

sought “ ‘a district she believed she could win [in] the

next election.’ ” Anne Arundel County Republican Cent.

Comm. v. State Admin. Bd. of Election Laws, 781

F. Supp. 394, 408 (D. Md. 1991), aff ’d, 504 U.S. 938

(1992) (Niemeyer, J., dissenting). The 2011 plan eliminated the Bay Bridge crossing by extending the northern

portion of the First District westward into precincts

formerly contained within the Sixth District.

Second, the 2011 plan accommodated the request

of the Maryland Legislative Black Caucus to reduce

from three to two the number of districts having

territory in Prince George’s County. Fletcher, 831

F. Supp. 2d at 902. This required shifts in population

in the Fourth and Eighth Districts, as well as the Sixth

District, which borders the Eighth.

Third, the 2011 plan retained as majorityminority districts both of Maryland’s Section 2 Voting

Rights Act districts (the Seventh and Fourth Districts),

6

which necessitated shifts elsewhere to accommodate

population changes in those districts.

Fourth, the map developed through this process

connected Frederick and Montgomery Counties via

I-270 and made the I-270 corridor a major feature of

the Sixth District. Dkt. 186-11 ¶ 9.

Finally, in addition to meeting these significant

legislative goals, Governor O’Malley expressed that

“part of [his] intent was to create a map that, all things

being legal and equal, would, nonetheless, be more

likely to elect more Democrats rather than less. Dkt.

186-2, 47:2-5.

b. The final map also responded to concerns expressed during public hearings. Sixth District voters

had “advocated for replacing the part of the Sixth

District stretching east into Baltimore and Harford

Counties, and perhaps even some or all of Carroll

County, with territory from Montgomery County.” App.

19a. The residents explained that these changes were

needed to “mak[e] it viable for someone to reach the

voters, and in terms of better representing the population.” App. 20a. A former plaintiff in this action, Stephen Shapiro, described the associational harms

caused by the then-existing map and lamented the “decreased turnout and interest” in the general election

caused by packing in the Eighth District, which yielded

results he characterized as “usually a foregone conclusion.” Dkt. 186-3, 66. Other Sixth District Democrats

felt “shut out of the process” because “their politics

weren’t represented at all at the national level.” Id. at

7

27. One Democratic candidate explained that the thenexisting map made it difficult to campaign because

the former Sixth District encompassed a huge swath of

geographic territory centered on two different metropolitan areas. Id. at 21-24; see id. at 12, 16-17.

3. The congressional redistricting statute was

enacted in substantially the same form as proposed,

and it was then petitioned to statewide referendum,

with a sizable majority of voters approving the legislation in the November 2012 election. App. 22a-23a. The

plan won voters’ support in areas throughout the

State, with majorities favoring the plan in 22 of Maryland’s 24 counties, including three of the five counties

that, prior to the 2011 redistricting, were located

wholly or partly within Maryland’s Sixth District.1

Dkt. 104 ¶ 39.

4. The subsequent elections reflected a more

invigorated electorate, with the new Sixth District’s

voters favoring Republicans in some races and Democrats in others. See Dkt. 186-19, 11. In the counties included in the former Sixth District, Republican voter

registration increased year-over-year from 2010 to

2016, Dkt. 186-50, and turnout among Republicans

increased between the 2008 and 2012 presidential

elections, Dkt. 186-51. Although turnout in the 2014

gubernatorial primary was down statewide, from

1

See http://www.elections.state.md.us/elections/2012/results/

general/gen_detail_qresults_2012_4_0005S-.html (last visited

Dec. 1, 2018).

8

25.35% in 2010 to 21.81% in 2014,2 Republican turnout

in Garrett, Allegany, and Washington Counties outpaced Democratic turnout in the 2014 gubernatorial

primary. Id. And, notwithstanding small variations in

contributions to local Republican central committees,

contributions to then-incumbent Republican Congressman Roscoe Bartlett’s campaign committee in 2012

were more than twenty-five times those received in

2010.3

Post-redistricting, plaintiffs maintained or increased their own associational activities. All the

plaintiffs voted regularly after the 2011 redistricting.

Dkt. 186-20, 11:19-12:10; Dkt. 186-43, 10:21-11:1; Dkt.

186-44, 13:15-17; Dkt. 186-25, 14:17-15:16; Dkt. 186-24,

11:6-12; Dkt. 186-45, 18:12-18; Dkt. 186-36, 12:10-17.

When Plaintiff DeWolf became aware of the referendum effort, he was inspired to take an active role in

politics for the first time and subsequently became a

member of the Washington County Republican Central

Committee and the Washington County Republican

Club. Dkt. 186-43, at 13:15-14:14; 24:2-5. Plaintiffs

Ropp and Strine were also active in local Republican

2

Compare https://elections.maryland.gov/elections/2010/

turnout/primary/2010_Primary_Statewide.html with https://

elections.maryland.gov/elections/2014/turnout/primary/GP14_

turnout_statewide_by_party.xls.

3

Compare http://docquery.fec.gov/cgi-bin/forms/C00255190/

835478/ (Post-General 2010, reporting $46,091.96 in total contributions for reporting period and election cycle-to-date) with

http://docquery.fec.gov/cgi-bin/forms/C00255190/838435/ (PostGeneral 2012, reporting $1,185,434.87 in same).

9

political campaigns both before and after the redistricting. App. 26a-27a.

5.a. The plaintiffs filed this action in November

2013. On December 8, 2015, this Court issued its decision reversing dismissal of the first amended complaint and remanding, Shapiro v. McManus, 136 S. Ct.

450 (2015).

b. In March 2016, plaintiffs filed a second

amended complaint, asserting for the first time their

First Amendment retaliation claim alleging unlawful

vote dilution. App. 84a. They asserted that the drafters

of the 2011 plan “purposefully and successfully flipped

[the District] from Republican to Democratic control”

by “moving the [D]istrict’s lines by reason of citizens’

voting records and known party affiliations,” thereby

“diluting the votes of Republican voters and preventing them from electing their preferred representatives

in Congress.” App. 181a. (brackets in original).

The district court denied defendants’ motion to

dismiss the second amended complaint in August

2016. App. 172a-225a. The majority held that a judicially manageable standard existed to adjudicate the

plaintiffs’ vote-dilution (or “representational-rights”)

claim. Under that standard, plaintiffs must show that

(1) “those responsible for the map redrew the lines of ”

a plaintiff ’s district “with the specific intent to impose

a burden on him and similarly situated citizens because of how they voted or the political party with

which they were affiliated”; (2) “the challenged map diluted the votes of the targeted citizens to such a degree

10

that it resulted in a tangible and concrete adverse effect”; and (3) “absent the mapmakers’ intent to burden

a particular group of voters by reason of their views,

the concrete adverse impact would not have occurred.”

App. 199a. That decision did not address any claim

premised on an injury to plaintiffs’ associational

rights.

Nine months after the court’s decision, on May 31,

2017, the plaintiffs filed a motion for preliminary injunction and to advance and consolidate the trial on

the merits, or in the alternative, for summary judgment. Dkt. 177. After oral argument, the district court

denied the request for preliminary injunction, declined

to dispose of the parties’ fully briefed cross-motions for

summary judgment, and entered a “stay pending further guidance” from this Court’s disposition of Gill v.

Whitford, No. 16-1161. App. 83a & n.1.

In denying preliminary injunctive relief, the court

held that the plaintiffs “have not demonstrated that

they are entitled to the extraordinary (and, in this

case, extraordinarily consequential) remedy of preliminary injunctive relief ” because they had “not made an

adequate preliminary showing that they will likely

prevail” on the merits of their First Amendment claim.

App. 83a. The court deemed plaintiffs unlikely to succeed in carrying their burden of proving it was the alleged “gerrymander (versus a host of forces present in

every election) that flipped the Sixth District, and,

more importantly, that will continue to control the electoral outcomes in that district.” App. 100a.

11

On August 25, 2017, the plaintiffs appealed the denial of the preliminary injunction. Dkt. 205. After hearing argument, this Court issued its June 18, 2018 per

curiam opinion noting its jurisdiction and affirming

the district court’s denial of the preliminary injunction.

Benisek, 138 S. Ct. 1942. This Court concluded that,

even assuming that plaintiffs were able to show a likelihood of success on the merits, their delay in seeking

injunctive relief and the public’s interest in orderly

elections supported the district court’s denial of injunctive relief and stay of proceedings pending this Court’s

decision in Gill. Id. at 1944-45.4

6.a. On remand, the parties requested leave to

brief the district court on how this Court’s Benisek and

Gill rulings affected the pending summary judgment

motions. The plaintiffs also informed the district court

that no further discovery would be necessary. Dkt. 209,

1. Plaintiffs’ supplemental briefing continued to press

their vote-dilution claim, on which the district court

had previously focused. Dkt. 210, 7-19. But plaintiffs

also asserted a new claim premised on injury to their

associational rights, for which the evidentiary record

was less developed. Id. at 19-22.

Attempting to buttress their new associationalrights claim, plaintiffs submitted turnout data retrieved from the Maryland State Board of Elections’

4

On that same day, this Court also issued its ruling in Gill,

138 S. Ct. 1916, vacating and remanding to allow plaintiffs to

demonstrate “concrete and particularized injuries” to establish

standing to assert their partisan-gerrymandering claims. Id. at

1934.

12

website, together with lay opinion testimony from one

of their attorneys purporting to analyze that data to

show declines in Republican turnout in comparable

elections before and after the implementation of the

2011 map. Dkt. 210-3; Dkt. 210, at 16-17. Plaintiffs also

submitted campaign-finance reports retrieved from

the Maryland State Board of Elections, which they

claimed showed declines in contributions to local Republican Party committees in relevant areas before

and after the implementation of the 2011 map. Dkt.

210-3, at 7-8; Dkt. 210, at 17-18. Defendants moved to

exclude this evidence because the data was hearsay,

outside the affiant’s personal knowledge, not part of

the discovery record, and not otherwise subject to judicial notice, and because the attorney’s lay analysis of

election-return data constituted inadmissible lay opinion testimony. Dkt. 215, at 1. The district court denied

the motion to strike without commenting on the validity of the evidentiary objections, on the grounds that a

bench trial obviates the need for strict adherence to evidentiary rules, and the panel could “simply strike the

evidence later,” if appropriate. Dkt. 219, 2.

b. The three-judge court awarded summary

judgment to the plaintiffs on November 7, 2018. See

App. 1a-77a; 78a-81a. Judge Niemeyer’s opinion concluded that the plaintiffs were entitled to summary

judgment on both of their First Amendment retaliation

theories of vote dilution and impairment of associational rights. App. 4a. Judge Bredar’s opinion concluded that the plaintiffs were entitled to summary

judgment on their associational rights theory alone,

13

App. 71a-76a; Judge Bredar criticized Judge Niemeyer’s opinion for its causation analysis pertaining to

both of plaintiffs’ theories, App. 69a-70a.

With regard to the representational-rights claim,

Judge Niemeyer applied the standard the district

court developed at the motion-to-dismiss stage and

concluded that plaintiffs had established each element

of their claim. App. 48a. As to intent, he found that

Maryland Democratic officials worked with “precise

purpose” to “flip the Sixth District from safely Republican to likely Democratic.” App. 48a, 49a.

Addressing injury, Judge Niemeyer concluded that

the redrawn Sixth District “did, in fact, meaningfully

burden [plaintiffs’] representational rights,” App. 52a,

even if the district had become more electorally competitive, because “Republican voters in the new Sixth

District were, in relative terms, much less likely to

elect their preferred candidate than before the 2011 redistricting.” App. 53a. He added that, although not essential to the conclusion, “the fact that the Democratic

candidate was elected in the three elections following

the 2011 redistricting provides additional evidence” of

injury. Id.

Finally, as to causation, Judge Niemeyer found

that only retaliatory intent explained the Sixth District’s boundaries. App. 54a-56a. In so ruling, he rejected as “utter[ly] implausib[le],” the State’s evidence

of alternative motivations, described above, for the redrawing of the district, including the western extension of the First District into territory previously

14

occupied by the Sixth District “to prevent the new First

District from crossing the Chesapeake Bay,” and

“grouping residents along the Interstate 270 corridor,”

who previously resided in separate districts, into the

Sixth District. App. 55a. He deemed the State’s evidence of alternative motivation irrelevant in light of

“the undisputed fact” that “the redistricting operation

was guided by the expressed plan to protect existing

Democratic seats and flip the Sixth District from Republican to Democratic Control.” Id.

Addressing the associational-rights claim, Judge

Niemeyer articulated a standard similar to the one the

district court established for evaluating plaintiffs’ representational-rights claim, except that “in lieu of the

harm involving a burden on representational rights,

[plaintiffs] must prove a harm involving a burden on

their associational rights,” namely, “that the challenged map burdened [their] ability to associate in furtherance of their political beliefs and aims.” App. 59a.

Plaintiffs satisfied that burden, he explained, because

several indicators of “voter engagement in support of

the Republican Party” in the Sixth District “dropped

significantly.” App. 62a. These indicators included

voter turnout data and fundraising data—including

data that was the subject of the State’s motion to strike

in advance of the summary judgment hearing, see Dkt.

215-1; App. 28a, 63a (citing fundraising data submitted

with supplemental briefing); App. 74a-75a (concurring

opinion of Judge Bredar citing the same).

Turning to remedy, Judge Niemeyer concluded

that plaintiffs had satisfied the requirements for

15

injunctive relief. App. 64a-65a. He opined that plaintiffs’ delay in pursuing relief need not be considered in

determining whether to enter a permanent injunction,

and, contrary to this Court’s conclusion, Benisek, 138

U.S. at 1944, found that the case’s “protraction cannot

be attributed to the plaintiffs[.]” App. 66a. According to

Judge Niemeyer, an election in 2020 with the current

map—even if only for one election cycle—would irreparably harm plaintiffs, whereas ordering a new map

for the 2020 election would not unduly disrupt the election process, despite the inevitable need to redraw that

map yet again to reflect results of the 2020 census. App.

65a-67a.

In awarding judgment to plaintiffs, the district

court enjoined the State from conducting any further

elections under the 2011 map, and directed the State

to submit for the district court’s approval a new congressional districting plan that redraws the boundaries of the Sixth District “applying traditional criteria

for redistricting . . . and without considering how citizens are registered to vote or have voted in the past or

to what political party they belong.” App. 78a-79a. If

the State fails to submit a map, or if the district court

declines to approve the map, a court-appointed commission will assume the responsibility of drawing and

submitting a map to the three-judge court for approval.

App. 79a-80a.

c. On November 15, 2018, the defendants filed a

notice of appeal, App. 226a, and filed a consent motion

to stay the district court’s judgment during the pendency of the appeal, Dkt. 226. On November 16, 2018,

16

the district court granted in part the stay motion, and

stayed the proceedings until the earlier of this Court’s

disposition of the appeal or July 1, 2019. Dkt. 230.

------------------------------------------------------------------

ARGUMENT

I.

The Three-Judge District Court Did Not

Set Forth a “Limited and Precise” Test

for Adjudicating Partisan-Gerrymandering

Claims.

The First Amendment retaliation formula adopted

here has one principal disqualifying flaw: it does not

resolve the “central problem” for a court attempting to

address a claim of partisan gerrymandering. Vieth v.

Jubelirer, 541 U.S. 267, 296 (2004) (plurality op.). As

the plurality emphasized in Vieth, and all justices

there acknowledged in one way or another, that central

problem is determining when the redistricting process,

which is “root-and-branch a matter of politics,” id. at

285, nonetheless “has gone too far,” id. at 296.

A. The Three-Judge Court’s Standards

Would Preclude Districting for Proportional Representation, Which This

Court Has Long Approved.

The standards employed in the three-judge court’s

two majority opinions do not amount to a “limited and

precise test” for adjudicating partisan-gerrymandering

claims, primarily because, however one parses their

contradictory analyses, they insist on proscribing

17

activity that this Court has repeatedly held to be permissible.

In Gaffney v. Cummings, 412 U.S. 735, 752 (1973),

the Court rejected a challenge to a Connecticut proportional districting plan that drew “virtually every” line

with “conscious intent to create a districting plan that

would achieve a rough approximation of the statewide

political strengths of the Democratic and Republican

Parties.” In upholding the plan, the Court refused to

hold that “any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it.” Id. at 752; see Gill, 138 S. Ct. at

1927. But the three-judge court’s standard would condemn the maps that this Court upheld in Gaffney,

which were drawn with express reference to voters’ political affiliations so as to achieve “a rough approximation of the statewide political strengths of the

Democratic and Republican Parties.” 412 U.S. at 752.

With regard to representational injury, Judge

Niemeyer’s opinion likened political vote-dilution to

the numerical dilution caused by an overpopulated district and reasoned that citizens “have a right under the

First Amendment not to have the value of their vote

diminished because of the political views they have expressed through their party affiliation and voting history.” App. 42a. Accordingly, his opinion reaffirmed the

intent, effect, and causation standard he first articulated in Shapiro, 203 F. Supp. 3d at 596-97. App. 43a.

In articulating this standard, the opinion did not define what constitutes a “tangible and concrete adverse

18

effect” in this context. Instead, it merely referenced

similarly indeterminate language—“the plaintiffs must

show only that their electoral effectiveness—i.e., their

opportunity to elect a candidate of choice—was meaningfully burdened,” App. 52a—before simply announcing that the element was satisfied in this case, App.

53a. This standard allows for no consideration of party

affiliation and thus, it is inconsistent with the decision

in Gaffney, which allowed consideration of party affiliation to achieve proportional representation.

The three-judge court’s associational rights claim

suffers from the same defects. In addition to the same

“intent” and “causation” elements required for a votedilution claim, the associational-rights standard looks

to whether “the challenged map burdened the targeted

citizens’ ability to associate in furtherance of their political beliefs and aims.” App. 59a, 72a. Specifically, the

court concluded5 that the “atmosphere of general confusion and apathy” that resulted from the redistricting

caused (unmeasured and unspecified) decreases in

“fundraising, attracting volunteers, campaigning, and

generating interest in voting.” App. 63a.

But any redistricting, for any reason, risks generating an “atmosphere of general confusion and apathy,”

id., among those residents who are reassigned to different districts and must therefore shift their associational activities, at least with regard to congressional

campaigns, to the new geographic alignment. Thus,

5

As discussed below in part II, these conclusions were based

on improper resolution of factual and evidentiary disputes.

19

evaluating associational harm rather than representational harm does not free the court of the significant

line-drawing problems posed by the vote-dilution injury, because any redistricting impacts some individuals’ associational rights. This problem of line-drawing

cannot be averted merely by resorting to the threejudge court’s element of partisan intent, which contains no means of distinguishing between permissible

and impermissible political considerations.

Finally, as if to underscore the standard’s incongruity with this Court’s precedent, the three-judge

court directed the State “to adopt promptly a new congressional districting plan that addresses the constitutional violations found here with respect to the Sixth

District for use in the 2020 elections,” App. 67a, and

expressly prohibited the State from “considering how

citizens are registered to vote or have voted in the past

or to what political party they belong” in doing so, App.

79a. The State is thus precluded from, for example,

adopting a map that seeks to approximate the

strengths of Democrats and Republicans statewide (as

this Court permitted in Gaffney). The three-judge

court’s opinions and injunction fail to set forth workable standards for adjudicating partisan-gerrymandering claims, because they foreclose considerations that

this Court has long held to be permissible.

20

B. The Three-Judge Court Impermissibly

Assumes That Preexisting District

Configurations Are the Constitutional

Benchmark.

The intent and effects elements adopted by the

three-judge court can be evaluated only with reference

to the prior map. The three-judge court has stated

that legislators may not intend “to flip” a challenged

district “from safely Republican to likely Democratic.”

App. 49a. Judge Niemeyer’s opinion reduces the concept to a zero-sum game: “It is impossible to flip a

seat to the Democrats without flipping it away from

the Republicans.” App. 50a-51a. It is no less impossible

to evaluate whether something was or was not intended to be “flipped” without reference to the previous

redistricting plan. Similarly, with respect to votedilution injury, a plaintiff cannot show that she was

“placed at a concrete electoral disadvantage,” App. 52a,

without consideration of the electoral advantages

enjoyed under the prior map. So, too, does the associational harm require comparison to associational activity under the prior map to determine whether the

new map “burdened the targeted citizens’ ability to

associate in furtherance of their political beliefs and

aims.” App. 59a; App. 75a (party members harmed if

“severed from their preferred associates” in the prior

district); see App. 61a-63a (comparing pre- versus postredistricting data).

In all these respects, the three-judge court’s opinions test the constitutionality of a redistricting plan by

comparing the current districting plan to the status

21

quo ante. But there is no constitutional reason to believe a prior district “has any special claim to fairness,”

particularly where the old district “was formed for partisan reasons.” League of United Latin Am. Citizens v.

Perry (“LULAC”), 548 U.S. 399, 446-47 (2006) (Kennedy, J.). On the contrary, any standard that invests

the prior district with the power to invalidate subsequent legislative acts altering its borders will almost

inevitably yield absurd results. Among them are the

impairment of a legislature’s ability to remedy a past

partisan gerrymander. Under the three-judge court’s

test, claims from those voters whose districts did not

change, and are therefore still affected by the prior gerrymander, would be barred, because they could not

show that their vote was diluted or their associational

opportunities diminished compared to the prior districting map. But claims from voters who were newly

in a political minority as the result of legislation curing

a prior partisan gerrymander would be actionable because claimants would be able to demonstrate that the

legislature could and did “flip” the makeup of their district intentionally. See App. 50a.

If that is so, the State would be unable to “avoid

liability,” because its interest in remedying past

gerrymandering would be, in the three-judge court’s

estimation, not a “compelling government interest.”

App. 43a. Legislatures would then be constitutionally

precluded from attempting to cure past political gerrymanders, and remedy for those past ills would be available, if at all, only from the courts. Such a result

directly conflicts with “ ‘what has been said on many

22

occasions: reapportionment is primarily the duty and

responsibility of the State through its legislature or

other body, rather than of a federal court.’ ” Growe v.

Emison, 507 U.S. 25, 34 (1993) (quoting Chapman v.

Meier, 420 U.S. 1, 27 (1975)).

If the goal of recognizing a partisan-gerrymandering claim is to remedy excessive or unfair partisanship,

then prior districts are more likely part of the problem

rather than the solution. Enshrining pre-existing

maps as the constitutional touchstone for future redistricting may perpetuate the nationwide political dominance of one party. See Jowei Chen & David Cottrell,

Evaluating Partisan Gains from Congressional Gerrymandering: Using Computer Simulations to Estimate

the Effect of Gerrymandering in the U.S. House, 44

Electoral Studies 329, 336, 337 fig. 4 (2016) (discussing

the two major parties’ relative control over states’ redistricting processes).

The three-judge court’s premise, that the constitutionality of a redistricting plan under consideration depends entirely on the configuration of the prior map,

will not provide a judicially manageable test for determining partisan gerrymanders.

C. Neither of the Three-Judge Court’s Dueling Standards Provides the Requisite

Guidance to Legislators on How to Redistrict Within Constitutional Limits.

In adopting a standard based in First Amendment

retaliation with no definition of what would constitute

23

impermissible effects, the three-judge court fell short

of establishing a “limited and precise rationale” for

adjudicating partisan-gerrymandering claims. Vieth,

541 U.S. at 306 (Kennedy, J., concurring). Judge Niemeyer’s opinion identified two types of potential injury:

(1) a “meaningful[ ] burden” on the plaintiffs’ “representational rights,” which the court also described as

“a concrete electoral disadvantage,” App. 52a; and (2) a

“burden[ on] the targeted citizens’ ability to associate

in furtherance of their political beliefs and aims,” App.

59a. The opinion further explained that there no longer

need be any showing “that the linedrawing altered the

outcome of an election,” App. 52a, and thus abandoned

a requirement imposed in both of the three-judge

court’s prior decisions, App. 108a-109a, 202a. As for the

newly identified associational harm, the court relied

only on (1) a drop in turnout in a single primary election in which the statewide turnout was also depressed, and in which Democratic turnout was lower

than Republican turnout, App. 62a; (2) hearsay statements that non-plaintiffs experienced “a lack of enthusiasm,” App. 62a; and (3) a singular statement from a

singular plaintiff that he felt “ ‘disoriented’ by and ‘disconnected’ from his new congressional district,” App.

63a; see App. 74a-75a.

Judge Bredar’s separate majority opinion does not

illuminate. He asserts that adopting a test based in associational harm “poses no line-drawing problem,”

App. 71a, but requires only a showing that the District

“deprives the disfavored group of voters of its ‘natural

political strength,’ ” App. 73a (quoting Gill, 138 S. Ct.

24

at 1938 (Kagan, J., concurring). Just as Judge Niemeyer’s vote-dilution injury lacks any method to

measure how much is too much, Judge Bredar provides

no method for determining the “natural political

strength” of any political association that would aid

courts in determining whether that strength has been

diminished, particularly where the decade preceding

redistricting has seen considerable shifts in migration,

commuting patterns, or demographics within a district. Both alternative paths provided below attempt to

identify “a burden,” but neither defines that burden “as

measured by a reliable standard,” something “a successful claim attempting to identify unconstitutional

acts of partisan gerrymandering must do.” LULAC,

548 U.S. at 418 (Kennedy, J.).

For legislators interested in avoiding “an electionimpeding lawsuit contending that partisan advantage

was the predominant motivation,” Vieth, 541 U.S. at

286 (plurality op.), a standard for measuring burden is

indispensable. This need is acute because the identified burdens will be present, in some amount, in every

redistricting. As explained more thoroughly in Brief for

Appellees at 28-30, Benisek, 138 S. Ct. 1942 (No. 17333), defining “vote dilution” as an injury without specifying any means to evaluate the quantity or impact of

the asserted dilution does not present a judicially manageable standard. Moreover, here, the court’s standard

provides no practical limit on potential claims—a

political group could bring suit alleging a “concrete

electoral disadvantage,” even if they consistently win

25

elections but must expend additional effort in order to

do so.

The identified associational harms particular to

the facts of this case are similarly unlimited. It will not

be hard, after any redistricting, to identify a few members of any political party or association who find

themselves newly in a congressional district different

from that of their neighbors. Anyone whose residence

is reassigned to a new district could feel “disoriented”

by redistricting, and disenchantment with the political

process is common enough to be found on either side of

a district line. The court required no evidence that associations suffered an adverse impact to their membership, or evidence showing exactly how their members’

activities were curtailed or limited. To the contrary,

ample evidence shows that the newly competitive

Sixth District increased participation in political associations and activities among the plaintiffs and in the

general electorate. E.g., supra, 7-9. If the evidence in

this case meets the test for associational harm, then

those harms will be present in each redistricting.

A legislature will face difficulty in demonstrating

it has not acted with the intent the three-judge

court prohibited. This Court has long recognized that

direct inquiries into legislative “motives or purposes

are a hazardous matter.” United States v. O’Brien, 391

U.S. 367, 383 (1968). Broad and frequent inquiries into

legislative motive “ ‘undermine[ ] the ‘public good’ by

interfering with the rights of the people to representation in the democratic process.’ ” Bogan v. Scott-Harris,

523 U.S. 44, 52 (1998) (citation omitted). A search for

26

retaliatory intent is especially fraught because it

raises “the prospect of every loser in a political battle

claiming that enactment of legislation it opposed was

motivated by hostility toward the loser’s speech.”

Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747

F.3d 814, 842 (10th Cir. 2014), abrogated in part on

other grounds by Armstrong v. Exceptional Child Ctr.,

Inc., 135 S. Ct. 1378, 1383 (2015). The three-judge

court’s standard endorsed a wide-ranging inquiry

into legislative intent, relying on such varied sources

as statements from legislators who did not hold leadership positions and were not involved in the map

drafting, App. 20a-24a; legislators who opposed the

proposed plan,6 App. 24a; deposition testimony of a former Governor, App. 49a-50a; deposition testimony of a

consultant who prepared a map rejected by Maryland

decisionmakers, App. 48a; and Congressional aides’ inadmissible e-mails that had no obvious relation to the

Sixth District, App. 22a. These evidentiary sources are

more problematic than even the legislative testimony

admissible in an “extraordinary instance[ ].” Village of

Arlington Heights v. Metropolitan Hous. Dev. Corp., 429

U.S. 252, 268 (1977).

The three-judge court describes their requisite

intent standard as “retaliatory.” Their expansive definition, which would encompass any intent to take an

6

See Bryan v. United States, 524 U.S. 184, 196 (1998)

(“ ‘The fears and doubts of the opposition are no authoritative

guide to the construction of legislation.’ . . . ‘In their zeal to defeat

a bill, they understandably tend to overstate its reach.’ ” (quoting

Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384,

394 (1951); NLRB v. Fruit Packers, 377 U.S. 58, 66 (1964))).

27

action “based on the persons’ political affiliation and

voting” if such an action “burden[s] their representational rights,” does not derive from “well developed and

familiar” First Amendment retaliation standards.

Baker v. Carr, 369 U.S. 186, 226 (1962). Under those

standards, a government official must act with “vengeful” intent to punish or fail to reward an individual

“for speaking out.” Hartman v. Moore, 547 U.S. 250, 256

(2006). But here, no government official examined

individually the expressive activity of any plaintiffs or

any association to which they belong. See, e.g., Moss v.

Harris County Constable Precinct One, 851 F.3d 413,

421 (5th Cir. 2017) (no retaliation claim where government had no knowledge of the individual’s expressive

conduct). Moreover, there is no government official to

whose intent the map may be attributed. Instead, the

2011 Congressional map was approved directly by the

people of Maryland, including majorities in three

majority-Republican counties within the Sixth Congressional District.7

II.

The Three-Judge Court Erred by Departing from the Summary Judgment Standard

When It Resolved Disputes of Material

Fact and Made Credibility Findings.

In addition to the theoretical flaws in the threejudge court’s adopted standards, reversal is necessary

because the court committed a more extreme version

7

See https://elections.maryland.gov/elections/2012/results/

general/gen_detail_qresults_2012_4_0005S-.html (last visited

Dec. 1, 2018).

28

of the error for which this Court reversed a three-judge

court’s entry of summary judgment in Hunt v.

Cromartie, 526 U.S. 541, 548-54 (1999). That is, the

court below resolved issues of “disputed fact,” “credited

appellees’ asserted inferences over those advanced and

supported by appellants or did not give appellants the

inference they were due,” and otherwise engaged in

“ ‘[c]redibility determinations’ ” and “ ‘the weighing of

the evidence,’ ” which are functions for the trier-of-fact

and “not suited for summary disposition.” Id. at 552,

554 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)). But unlike Hunt, where the court

resolved disputed facts as to only one element of a racial-gerrymandering claim, i.e., the legislature’s “impermissible racial motivation,” 526 U.S. at 552, the

three-judge court here resolved disputed facts pertaining to multiple elements of plaintiffs’ claims, and did

so by crediting and relying on evidence that is the subject of still-unresolved hearsay and other timely objections to admissibility. The court selectively highlighted

facts and drew inferences in plaintiffs’ favor, in the face

of contradictory evidence favorable to the State, which

the court either discounted or chose not to mention.

Most fundamentally, like the court reversed in

Hunt, the court below failed to adhere to the requirement

that “in ruling on a motion for summary judgment, the

nonmoving party’s evidence ‘is to be believed, and all

justifiable inferences are to be drawn in [that party’s]

favor.’ ” Id. at 552 (quoting Anderson, 477 at 255). As

Hunt suggests, this has added significance in a redistricting challenge, because of “ ‘the sensitive nature of

29

redistricting,’ ” “ ‘the presumption of good faith that

must be accorded legislative enactments,’ ” and “ ‘the

intrusive potential of judicial intervention into the legislative realm’ ”—considerations that tend to “tip the

balance in favor of ” the need for a trial before “making

findings of fact” adverse to defendants. 526 U.S. at 553

(quoting Miller v. Johnson, 515 U.S. 900, 916-17

(1995)). Indeed, “summary judgment is rarely granted

in a plaintiff ’s favor” in “racial gerrymandering

claims,” id. at 553 n.9; precedent suggests no reason

summary judgment should be more lightly granted to

plaintiffs bringing partisan-gerrymandering claims.

Thus, even if plaintiffs’ evidence “might allow the District Court to find” in their favor after a trial, summary

judgment is “inappropriate when the evidence is susceptible of different interpretations or inferences by

the trier of fact.” Id. at 552-53 (emphasis in original).

Rather than heed these concerns and accord defendants the requisite belief and benefit of inferences, the

decision below both implicitly and expressly manifests

disbelief of the defendants’ evidence. See, e.g., App. 50a

(stating that “[t]he State’s argument . . . rings hollow”).

This error infects the three-judge court’s conclusions

as to all elements of plaintiffs’ claims, including injury,

intent, and causation.

For example, in addressing injury, the decision

disregards defendants’ showing, based on plaintiffs’

own deposition testimony, that plaintiffs themselves

had not suffered chilling or associational injury,

but had, instead, become more politically active

30

post-redistricting. See Statement supra at 8-9. As the

record also showed, the only evidence purporting to indicate chilling of political activity constituted inadmissible hearsay: plaintiffs’ descriptions of what some

unidentified persons said or felt about voting.8 Dkt.

201, 16. Those descriptions convey statements by unidentified out-of-court declarants, offered for “the truth

of the matter asserted,” and thus are hearsay, Fed. R.

Evid. 801(c), “inadmissible at trial” and “cannot be considered on a motion for summary judgment,” Maryland

Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d

1246, 1251 (4th Cir. 1991); accord Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998); see Fed. R. Civ. P.

56(c)(1)(B), (2), (4). Rather than disregard these hearsay statements, or even venture to address defendants’

hearsay objection, the summary judgment opinions of

Judges Niemeyer and Bredar credit and rely upon, as

proof of “harm to [plaintiffs’] associational rights,” App.

61a, plaintiffs’ repetition of “unattributed statements,”

which “cannot be admissible.” Vazquez, 134 F.3d at 34.

See App. 26a (“ ‘we met somebody who said, it’s not

worth voting anymore’ ” (quoting Strine Dep. 61));

App. 62a (same); App. 63a (“she frequently met potential Republican voters who ‘didn’t want to participate

that time because it seemed too confusing’ ”) (quoting

Ropp. Dep. 37-38)); App. 27a (same); App. 74a (crediting same hearsay statements). The court employed the

8

The only non-hearsay evidence plaintiffs presented on this

subject was deposition testimony of plaintiff Ned Cueman, who

described himself as “disoriented” or “disconnected,” Dkt. 177-1,

24, but conceded that post-redistricting he continued his political

engagement by voting regularly, Dkt. 186-25, 14:17-15:16.

31

statements for “the truth of the matter asserted.” See

App. 62a (crediting these statements by unidentified

declarants as “clear evidence” of “lack of enthusiasm,

indifference to voting, a sense of disenfranchisement, a

sense of disconnection, and confusion after the 2011 redistricting by voters”). The court never addressed defendants’ hearsay objections to these statements nor

identified any applicable exception to the hearsay rule.

Instead, the court most inaccurately characterized

these hearsay statements as among “undisputed facts

of record.” App. 61a.

Similarly, to demonstrate that Republican political participation in the Sixth District remained comparatively undeterred after the 2011 redistricting,

defendants presented evidence showing increases in

the district’s Republican voter registration and Republican voter turnout in general elections. See Dkt. 18650; 186-51. Instead of acknowledging this evidence, the

court below made two choices that distort the record to

defendants’ detriment: (1) by looking only at Sixth District Republican voters’ low turnout in the 2014 primary, App. 28a, without comparing it to available

public record evidence that Democratic turnout was

even lower in that same primary,9 and (2) by crediting

hearsay information on campaign contributions, id.,

which plaintiffs presented for the first time through an

affidavit of counsel submitted with supplemental

9

Compare https://elections.maryland.gov/elections/2010/

turnout/primary/2010_Primary_Statewide.html with https://

elections.maryland.gov/elections/2014/turnout/primary/GP14_

turnout_statewide_by_party.xls.

32

briefing filed more than 13 months after the close of

discovery, approximately a year after cross-motions for

summary judgment were briefed, and two weeks after

plaintiffs declined the court’s invitation to reopen discovery.

Far from being undisputed, the referenced campaignfinance information was the subject of defendants’

motion to exclude on grounds of hearsay, the affiant’s

lack of personal knowledge, and the information’s

widely recognized inaccuracy, and because campaignfinance reports are unsuitable for judicial notice. Dkt.

215-1. The court’s order denying that motion did not

indicate whether the court deemed defendants’ evidentiary objections valid. Dkt. 219. Instead, it merely cited

cases referring to relaxation of standards governing

the court’s gatekeeper role for expert testimony in a

bench trial (a concept inapplicable to the hearsay objections raised in the motion), before concluding that

“the Court can simply strike the evidence later,” “[i]f

determined to be problematic.” Id. at 2. None of the

court’s cited cases suggest any relaxation of the need

to exclude hearsay in a bench trial. See Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 238 (5th Cir.

1988) (Hearsay “is not” “admissible in a bench trial”

under Rule 802 and “neither this rule nor any other

rule or statute creates an exception for bench trials.”).

Moreover, because the campaign-finance evidence was

submitted in the final round of briefing permitted by

the court, long after the close of discovery, defendants

had no opportunity to probe the information’s veracity

through discovery or submit rebuttal evidence. In any

33

case, the selective campaign-finance information cited

by plaintiffs’ counsel is unrepresentative of overall

campaign contributions since redistricting. For example, other campaign-finance reports on file show that

contributions to Roscoe Bartlett’s campaign committee

increased by 2,500% between 2010 and the post-redistricting 2012 election.10

Similar departures from the summary judgment

standard plague the court’s intent analysis. For example, the court repeated the error that necessitated

reversal in Hunt by impermissibly giving greater

weight to plaintiffs’ evidence of the “legislature’s motivation”—“a factual question”—while failing to accept

defendants’ alternative “motivation explanation as

true, as the District Court was required to do in ruling

on [plaintiffs’] motion for summary judgment.” 526

U.S. at 549, 551. The court embraced plaintiffs’ characterization of “the mapmakers’ intent,” App. 48a, and

refused to accept as true, App. 50a-51a, defendants’

showing that changes in the Sixth District’s boundaries were driven by legitimate legislative decisions, including the rejection of a Chesapeake Bay crossing;

deference to Prince George’s County residents’ desire

for their county to have two districts, neither of them

shared by Montgomery County; and heeding constituents’ public testimony expressing the importance of

having a district to serve the I-270 corridor economic

region, e.g., Dkt. 186-11 ¶ 9; see Dkt. 201, 3-6 (discussing evidence of varied legislative motives). In so doing,

10

See http://docquery.fec.gov/cgi-bin/forms/C00255190/835478/

and http://docquery.fec.gov/cgi-bin/forms/C00255190/838435/.

34

the court weighed evidence. See, e.g., App. 14a-16a,

48a-49a (relying heavily on deposition testimony of

Congressional staffer Eric Hawkins, Dkt. 177-4, while

failing to acknowledge material contradictory testimony in the affidavit of State legislative staffer Yaakov

Weissmann, Dkt. 186-11, and elsewhere in the record);

App. 13a, 55a (selectively crediting and disbelieving

the former Governor’s deposition testimony). Once

again, the court credited inadmissible hearsay to

which defendants had objected, Dkt. 201, 5-6, and did

so without addressing the hearsay objection, see App.

22a (quoting foundationless hearsay email, Dkt. 17758).

Perhaps the decision’s most conspicuous failure to

acknowledge a genuine dispute of material fact appears in its finding that plaintiffs have satisfied the

causation element. App. 54a-56a. This conclusion directly contradicts the court’s previous determination,

based on the same evidentiary record, that it “is not

persuaded” that plaintiffs “have met their burden of

proof with respect to causation.” App. 100a. If, as it

previously acknowledged, “the Court cannot say that it

is likely that Plaintiffs will prevail on this element—

only that they might,” id., then, at a minimum, “the

evidence is susceptible of different interpretations or

inferences by the trier of fact,” and, consequently,

“[s]ummary judgment in favor of the party with the

burden of persuasion . . . is inappropriate[.]” Hunt, 526

U.S. at 553.

35

III. Plaintiffs’ Unreasonable Delay in Earlier

Phases of this Case Precludes Injunctive

Relief.

The Court should also note jurisdiction and reverse because the three-judge court abused its discretion both in (1) erroneously concluding that harm

caused by plaintiffs’ delay has no bearing on the appropriateness of a permanent injunction, and (2) directly

contradicting this Court’s finding that “years-long delay” in this case “largely arose from a circumstance

within plaintiffs’ control.” Benisek, 138 S. Ct. at 1944.

App. 66a. Entry of an injunction is “a matter of equitable discretion,” and success on the merits of a claim

does not automatically entitle plaintiffs to injunctive

relief “as a matter of course.” Benisek, 138 S. Ct. at

1943. This principle applies equally to requests for preliminary and permanent injunctions. See Monsanto Co.

v. Geertson Seed Farms, 561 U.S. 139, 165 (2010) (“An

injunction is a drastic and extraordinary remedy,

which should not be granted as a matter of course.”).

Like preliminary injunctions, permanent injunctions

are governed by “the four-factor test historically employed by courts of equity.” eBay Inc. v. MercExchange,

L.L.C., 547 U.S. 388, 390 (2006). This Court has long

recognized that these principles apply to election law

cases, including redistricting cases. Reynolds v. Sims,

377 U.S. 533, 585 (1964) (“equitable considerations”

may justify withholding ultimate relief in redistricting

case, even where plan violates constitution); accord

Benisek, 138 S. Ct. at 1944 (principle that diligence is

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a requirement for injunctive relief is “as true in election law cases as elsewhere”).

Contrary to the three-judge court’s assumption

that it need not consider the effect of plaintiffs’ delay

on “the ultimate remedy,” App. 66a, other courts have

applied equitable principles, including laches, in withholding injunctive relief for constitutional violations

when, as in this case, the relief would apply “for only

the last election in the decade” prior to completion of

the next decennial census. Skolnick v. Illinois State

Electoral Bd., 307 F. Supp. 691, 695 (N.D. Ill. 1969)

(three-judge court); Maryland Citizens for Representative Gen. Assembly v. Governor of Md., 429 F.2d 606,

610 (4th Cir. 1970) (same). In the face of “inexcusable

and unreasonable” delay, “a challenge to a reapportionment plan close to the time of a new census, which may

require reapportionment, is not favored.” White v. Daniel,

909 F.2d 99, 103 (4th Cir. 1990); see Sanders v. Dooly

County, Ga., 245 F.3d 1289, 1290 (11th Cir. 2001) (“over

six years” delay justified denying injunction of districting plan); Fouts v. Harris, 88 F. Supp. 2d 1351, 1354

(S.D. Fla. 1999) (three-judge court), aff ’d sub nom.

Chandler v. Harris, 529 U.S. 1084 (2000).

Proximity to an upcoming census creates a presumption against ordering a map redrawn, because

“two reapportionments within a short period of two

years would greatly prejudice the [jurisdiction] and its

citizens by creating instability and dislocation in the

electoral system,” “imposing great financial and logistical burdens,” and jeopardizing “fair and accurate representation for the citizens” through the use of stale

37

census data. White, 909 F.2d at 104. Courts have recognized the public interest in avoiding injunctions that

would necessitate resort to such data, even after a finding in plaintiffs’ favor on a claim as well-established as

one-person, one-vote. Skolnick, 307 F. Supp. at 695

(three-judge court finding plan unconstitutional for

lack of population equality but declining to impose injunction); see Chen v. City of Houston, 206 F.3d 502, 521

(5th Cir. 2000) (Even where prior district boundaries

were racially motivated, the “passage of six years”

“does caution against wholesale alteration” of district

lines “based on out-of-date census figures when the

process will in any case have to be done in the immediate future” because of a new census.).

Since the June remand, no circumstance has

arisen to alter this Court’s evaluation of the balance of

equities and weighing of the public interest in light of

plaintiffs’ dilatoriness. Benisek, 138 S. Ct. at 1944. This

Court concluded that plaintiffs did not “show reasonable diligence,” not only in belatedly requesting a preliminary injunction, but more significantly, in “fail[ing]

to plead the claims giving rise to their request for preliminary injunctive relief until 2016.” Id.

The findings supporting that conclusion apply

equally to plaintiffs’ request for permanent injunctive

relief. First, “[a]lthough one of the seven plaintiffs . . .

filed a complaint in 2013 alleging that Maryland’s congressional map was an unconstitutional gerrymander,

that initial complaint did not present the retaliation

theory asserted here.” Id. Second, the “newly presented

claims” required, beginning in 2016 and at plaintiffs’

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own insistence, “discovery into the motives of the officials who produced the 2011 congressional map.” Id.

Third, “plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief,” id., now has

caused additional delay in their pursuit of permanent

injunctive relief. Instead of “six years, and three general elections, after the 2011 map was adopted, and

over three years since the plaintiffs’ first complaint

was filed,” id., it has been seven years, and four general

elections, after the 2011 map was adopted, and nearly

five years since the original complaint was filed. The

loss of the additional election cycle was the direct consequence of plaintiffs’ late-filed request for preliminary injunction, an optional litigation strategy that

plaintiffs opted to pursue instead of pressing their

claim for permanent injunction.

The three-judge court sought to justify its entry of

injunctive relief, notwithstanding plaintiffs’ delay, by

declaring that this case’s protracted procedural history

“cannot be attributed to the plaintiffs, but to process.”

App. 66a. That finding directly contradicts this Court’s

assessment that “the delay largely arose from a circumstance within plaintiffs’ control: namely, their failure to plead the claims giving rise to their request for

preliminary injunctive relief until 2016.” Benisek, 138

S. Ct. at 1944. The three-judge court’s observation that

plaintiffs presented a claim for permanent injunction

in their 2013 complaint, App. 66a, does not absolve

plaintiffs, because that “initial complaint did not present the retaliation theory asserted here,” Benisek, 138

S. Ct. at 1944. And, though there remained time to

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implement a new plan for the 2020 election when the

three-judge court entered its injunction, the court ignored this Court’s caution to consider “the legal uncertainty surrounding any potential remedy” when

evaluating the impact to the state election system. Id.

When the three-judge court entered its judgment, App.

78a, a jurisdictional statement had already been filed

by defendants in a North Carolina redistricting case,

where a three-judge court recognized four separate

theories of a partisan-gerrymandering claim, and defendants seek review on grounds including nonjusticiability and lack of standing, among others. Even as

those four different standards were poised for review

by this Court, the court below added a fifth, and enjoined the State, while the exact contours of these

plaintiffs’ novel cause of action remained undefined.

Under these circumstances, the injunction ordered was

an abuse of discretion.

------------------------------------------------------------------

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CONCLUSION

The Court should note probable jurisdiction.

Respectfully submitted,

BRIAN E. FROSH

Attorney General of Maryland

STEVEN M. SULLIVAN*

Solicitor General

SARAH W. RICE

JENNIFER L. KATZ

ANDREA TRENTO

Assistant Attorneys General

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6325

ssullivan@oag.state.md.us

Attorneys for Appellants

*Counsel of Record