Amicus Curiae Brief — Linda H. Lamone, et al., Appellants v. O. John Benisek, et al.

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.

___________

LINDA H. LAMONE, ET AL., Appellants,

v.

O. JOHN BENISEK, ET AL., Appellees.

___________

On Appeals from the United States District

Courts for the Middle District of North Carolina

and the District of Maryland

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF APPELLEES

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 8, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICUS CURIAE ......................

1

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

1

ARGUMENT .........................................................

7

I.

At the Framing, the Constitution

Established a System of Government

in Which the People Choose Their

Elected Representatives, Not the

Other Way Around ..................................

7

Subsequent Amendments to the

Constitution Protect the Right of

Individuals To Associate for Political

Ends

and

Guarantee

that

All

Americans Enjoy Equal Protection of

the Laws, Regardless of Political

Affiliation .................................................

13

III. Partisan Gerrymandering that Has the

Purpose and Effect of Subordinating

Adherents of a Political Party and

Severely Limiting the Effectiveness of

Their Votes Violates the First and

Fourteenth Amendments .........................

20

IV. The Constitution Requires Redress by the

Courts

When

States

Subordinate

Adherents of a Political Party Based on

Viewpoint in Violation of the First and

Fourteenth Amendments ..........................

29

CONCLUSION ....................................................

32

II.

(i)

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Allen v. State Bd. of Elections,

393 U.S. 544 (1969) ...............................

22

Anderson v. Celebrezze,

460 U.S. 780 (1983) ...............................

5, 26

Ariz. Free Enter. Club’s Freedom Club PAC

v. Bennett,

564 U.S. 721 (2011) ............................... 3, 4, 14

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,

135 S. Ct. 2652 (2015) .................... 2, 10, 12, 20

Bd. of Cty. Comm’rs v. Umbehr,

518 U.S. 668 (1996) ...............................

25

Bd. of Educ., Island Trees Union Sch. Dist.

No. 26 v. Pico,

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

25

Bd. of Estimate v. Morris,

489 U.S. 688 (1989) ...............................

21

Bullock v. Carter,

405 U.S. 134 (1972) ...............................

5

Burdick v. Takushi,

504 U.S. 428 (1992) ...............................

25

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000) ...............................

13, 24

Carrington v. Rash,

380 U.S. 89 (1965) .................................

28

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Cohen v. California,

403 U.S. 15 (1971) .................................

13

Cooper v. Harris,

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

4

Davis v. FEC,

554 U.S. 724 (2008) ...............................

26

Elrod v. Burns,

427 U.S. 347 (1976) ............................ 13, 24, 25

Evenwel v. Abbott,

136 S. Ct. 1120 (2016) ...........................

9, 27

Gaffney v. Cummings,

412 U.S. 735 (1973) ....................... 22, 26, 27, 28

Gill v. Whitford,

138 S. Ct. 1916 (2018) ........................ 2, 5, 6, 23

Gomillion v. Lightfoot,

364 U.S. 339 (1960) ...............................

22, 27

Gray v. Sanders,

372 U.S. 368 (1963) ...............................

20

Heffernan v. City of Paterson,

136 S. Ct. 1412 (2016) ...........................

25

Kirkpatrick v. Preisler,

394 U.S. 526 (1969) ...............................

21

Kusper v. Pontikes,

414 U.S. 51 (1973) .................................

24

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

League of United Latin Am. Citizens v.

Perry,

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

23

Marbury v. Madison,

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

31

Matal v. Tam,

137 S. Ct. 1744 (2017) ...........................

24

McCutcheon v. FEC,

572 U.S. 185 (2014) ........................... 2, 4, 13, 19

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................ 14, 16, 18

Meyer v. Grant,

486 U.S. 414 (1988) ...............................

4

NIFLA v. Becerra,

138 S. Ct. 2361 (2018) ...........................

26

Obergefell v. Hodges,

135 S. Ct. 2584 (2015) ...........................

29, 30

O’Hare Truck Serv., Inc. v. City of

Northlake,

518 U.S. 712 (1996) ...............................

25

Reynolds v. Sims,

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

Rogers v. Lodge,

458 U.S. 613, (1982) ..............................

22

Romer v. Evans,

517 U.S. 620 (1996) ...............................

15, 20

v

TABLE OF AUTHORITIES – cont’d

Page(s)

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990) ................................. 24, 27

Schuette v. Coal. to Defend Affirmative

Action,

572 U.S. 291 (2014) ...............................

29

Shelby County v. Holder,

570 U.S. 529 (2013) ...............................

19

Strauder v. West Virginia,

100 U.S. 303 (1880) ...............................

19

Tashjian v. Republican Party of Conn.,

479 U.S. 208 (1986) ...............................

24, 31

Texas v. Johnson,

491 U.S. 397 (1989) ...............................

31

The Civil Rights Cases,

109 U.S. 3 (1883) ...................................

5

Thornburg v. Gingles,

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

23

United States v. Carolene Prods. Co.,

304 U.S. 144 (1938) ...............................

6

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ...............................

10

Vieth v. Jubelirer,

541 U.S. 267 (2004) ............................... passim

Voinovich v. Quilter,

507 U.S. 146 (1993) ...............................

23

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

W. Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ............................... 25, 31

Wesberry v. Sanders,

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

31

Whitcomb v. Chavis,

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

22

White v. Regester,

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

22

Williams v. Rhodes,

393 U.S. 23 (1968) .................................

26

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ............................... 4, 15, 19

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ...............................

29

Constitutional Provisions and Legislative Materials

1 Annals of Cong. (1789) (Joseph Gales ed.,

1834) ......................................................

12

4 Annals of Cong. (1794) (Joseph Gales ed.,

1834) ......................................................

14

Cong. Globe, 39th Cong., 1st Sess.

(1866) ...................................... 15, 16, 17, 18, 30

Cong. Globe, 41st Cong., 2d Sess.

(1869) .....................................................

30

2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836)..... passim

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836)..... 12, 30

4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed.,

1836) .............................................. 3, 7, 8, 13, 14

The Declaration of Independence (U.S.

1776) ......................................................

8

1 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) .............. 3, 8, 9

2 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) .......

9, 10, 11

3 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) ..............

16

Report of the Joint Committee on Reconstruction, 39th Cong., 1st Sess.

(1866) ..................................................

14, 18

U.S. Const. amend. XIV, § 2 ....................

19

U.S. Const. amend. XV, § 1 ......................

19

U.S. Const. amend. XIX, § 1 ....................

19

U.S. Const. amend. XXIV, § 1 ..................

19

U.S. Const. amend. XXVI, § 1 ..................

19

U.S. Const. art. I, § 2, cl. 1 .......................

9

U.S. Const. art. I, § 2, cl. 3 .......................

9

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

U.S. Const. art. IV, § 4 .............................

10

U.S. Const. pmbl. ....................................

7

Books, Articles, and Other Authorities

Akhil Reed Amar, America’s Constitution:

A Biography (2005) ...............................

7

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998) ............. 3, 13, 16

Mitchell N. Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781 (2005) ........

2

The Federalist No. 1 (Alexander Hamilton)

(Clinton Rossiter rev. ed., 1999) ...........

7

The Federalist No. 10 (James Madison)

(Clinton Rossiter rev. ed., 1999) ...........

30

The Federalist No. 14 (James Madison)

(Clinton Rossiter rev. ed., 1999) ...........

7

The Federalist No. 37 (James Madison)

(Clinton Rossiter rev. ed., 1999) ...........

8

The Federalist No. 43 (James Madison)

(Clinton Rossiter rev. ed., 1999) ...........

10

The Federalist No. 52 (James Madison)

(Clinton Rossiter rev. ed., 1999) ...........

9

The Federalist No. 57 (James Madison)

(Clinton Rossiter rev. ed., 1999) ...........

9, 10

ix

TABLE OF AUTHORITIES – cont’d

Page(s)

The Federalist No. 78 (Alexander Hamilton) (Clinton Rossiter rev. ed., 1999) ...

7, 30

Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (Perennial Classics 2002 ed.)...........................

17

Benj. B. Kendrick, The Journal of the Joint

Committee of Fifteen on Reconstruction,

39th Congress, 1865–1867 (1914) .........

16

James Madison, Report on the Virginia

Resolution (1800)................................... 3, 13, 14

Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788

(2010) .....................................................

11

Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the

Constitution (1996)................................

8, 12

Speech of Major Gen. Robert C. Schenck at

Dayton, Ohio (Aug. 18, 1866), in Cincinnati Com., Nov. 23, 1866, at 6 ..............

15

Speech of Sen. Lyman Trumbull at the Illinois Rail Road Depot, Chicago (Aug. 2,

1866), in Cincinnati Com., Nov. 23, 1866,

at 6 .........................................................

15

Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1998 ed.) ....

8

1

INTEREST OF AMICUS CURIAE1

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive

promise of our Constitution’s text and history. CAC

works in our courts, through our government, and with

legal scholars to improve understanding of the Constitution and preserve the rights and freedoms it guarantees. CAC accordingly has a strong interest in this

case.

SUMMARY OF ARGUMENT

In these cases, the state legislatures of North Carolina and Maryland drew congressional district lines

to subordinate voters of a particular political party, dilute their votes, and entrench in power the party controlling the legislature. In North Carolina, the state

legislature drew a map that sought to maximize the

election of Republican candidates because, as Representative David Lewis explained, “electing Republicans is better than electing Democrats. So I drew this

map to foster what I think is better for the country.”

Rucho J.A. 460. To that end, the mapmakers packed

and cracked Democratic voters, seeking to ensure that

Republican would wield political power far exceeding

their share of votes cast at the polls. In Maryland, the

state legislature redrew the 6th Congressional District

1 The parties have consented to the filing of this brief and their

letters of consent have been filed with the Clerk. Under Rule 37.6

of the Rules of this Court, amicus states that no counsel for a

party authored this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or

submission.

2

to flip the district from Republican to Democratic. To

achieve this end, the mapmakers shuffled hundreds of

thousands of citizens out of or into the 6th District, using sophisticated political data to dilute the votes of

Republican voters.

This sort of partisan gerrymandering is “‘incompatible with democratic principles’” deeply rooted in

the Constitution’s text and history. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct.

2652, 2658 (2015) (quoting Vieth v. Jubelirer, 541 U.S.

267, 292 (2004) (plurality opinion)). The maps drawn

in these cases violate “‘the core principle of republican

government,’ namely, ‘that the voters should choose

their representatives, not the other way around.’” Id.

at 2677 (quoting Mitchell N. Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781, 781 (2005)). A state

legislature’s drawing of lines to “subordinate adherents of one political party,” id. at 2658, and to burden

disfavored voters’ “‘representational rights,’” Gill v.

Whitford, 138 S. Ct. 1916, 1938 (2018) (Kagan, J., concurring) (quoting Vieth, 541 U.S. at 314 (Kennedy, J.,

concurring in the judgment)), cannot be squared with

the First and Fourteenth Amendments. Under our

constitutional scheme, “those who govern should be

the last people to help decide who should govern.”

McCutcheon v. FEC, 572 U.S. 185, 192 (2014).

When our Constitution’s Framers wrote our national charter more than two centuries ago, they recognized that “the true principle of a republic is, that

the people should choose whom they please to govern

them.” 2 The Debates in the Several State Conventions

on the Adoption of the Federal Constitution 257 (Jonathan Elliot ed., 1836) [hereinafter “Elliot’s Debates”].

The Framers were also deeply suspicious of partisan

manipulation of the electoral process. They knew that

“those who have power in their hands will not give it

3

up while they can retain it. On the [c]ontrary we know

they will always when they can rather increase it.”

1 The Records of the Federal Convention of 1787, at

578 (Max Farrand ed., 1911) [hereinafter Records of

the Federal Convention]. Aware of the dangers of faction, they wrote into the Constitution’s text and structure protections against partisan gerrymandering and

other similar abuses in federal elections. Concerns

about partisan efforts to manipulate the rules of our

democracy are thus as old as the Constitution itself.

In 1789, the Framers added the First Amendment

to the Constitution, ensuring protection of “[t]he special structural role of freedom of speech in a representative democracy.” Akhil Reed Amar, The Bill of

Rights: Creation and Reconstruction 25 (1998). The

First Amendment serves as a critical safeguard of

democratic self-governance, ensuring that “those in

power” may not “derive an undue advantage for continuing themselves in it; which, by impairing the right

of election, endangers the blessings of the government

founded on it.” James Madison, Report on the Virginia

Resolution (1800), in 4 Elliot’s Debates at 576. Governmental efforts to subject “a group of voters or their

party to disfavored treatment by reason of their

views,” Vieth, 541 U.S. at 314 (Kennedy, J., concurring

in the judgment), cannot be squared with the freedom

of speech and association the Constitution guarantees

to all. “[S]uch basic intrusion by the government into

the debate over who should govern goes to the heart of

First Amendment values.” Ariz. Free Enter. Club’s

Freedom Club PAC v. Bennett, 564 U.S. 721, 750

(2011).

The Rucho Appellants argue that the only check

on partisan gerrymandering is congressional action

under the Elections Clause, see Br. of Appellants

Rucho, et al. 31-37, but that ignores the changes that

4

“We the People” have made to the Constitution over

time to ensure that states respect the fundamental

guarantees of liberty and equality, including in state

regulation of the electoral process.

The eighteenth-century Constitution contained

few direct limits on the states, but, in the wake of a

bloody Civil War fought over slavery, the American

people fundamentally altered our federal system, adding to the Constitution universal guarantees of substantive fundamental rights and equal protection of

the laws, and, in later amendments, protections for the

right of citizens to vote—a right that this Court has

recognized is “preservative of all rights.” Yick Wo v.

Hopkins, 118 U.S. 356, 370 (1886); McCutcheon, 572

U.S. at 191 (“There is no right more basic in our democracy than the right to participate in electing our

political leaders.”). Significantly, these amendments

prohibit more than outright denials of the right to vote,

because “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote

just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S.

533, 555 (1964).

Efforts by the government to subordinate disfavored persons on account of their political affiliation—

such as by diluting their votes—cannot be squared

with either the fundamental guarantee of freedom of

speech or the Fourteenth Amendment’s universal

guarantee of the equal protection of the laws. As this

Court has many times held, states cannot regulate the

electoral process in a manner that runs roughshod

over the fundamental protections for speech and equal

protection. See, e.g., Cooper v. Harris, 137 S. Ct. 1455,

1463 (2017); Ariz. Free Enter. Club’s Freedom Club

PAC, 564 U.S. at 754; Meyer v. Grant, 486 U.S. 414,

420-21 (1988); Anderson v. Celebrezze, 460 U.S. 780,

5

786-88, 792-94 (1983); Bullock v. Carter, 405 U.S. 134,

141 (1972); Reynolds, 377 U.S. at 566-68.

When the Framers of the Fourteenth Amendment

wrote the equal protection guarantee, they were particularly concerned about Southern states’ efforts to

deny equal rights to citizens associated with the Republican party, which had supported the Union during

the Civil War. “The Fourteenth Amendment extends

its protection to races and classes, and prohibits any

State legislation which has the effect of denying to any

race or class, or to any individual, the equal protection

of the laws.” The Civil Rights Cases, 109 U.S. 3, 24

(1883). It protects individuals who choose to associate

with a political party from state-sponsored discrimination “because of their ‘political association,’ ‘participation in the electoral process,’ ‘voting history,’ or ‘expression of political views.’” Gill, 138 S. Ct. at 1938

(Kagan, J., concurring) (quoting Vieth, 541 U.S. at 31415 (Kennedy, J., concurring in the judgment)).

Thus, both the Constitution’s text and history and

this Court’s cases point to the same conclusion: the

Constitution firmly limits the authority of state legislatures to draw lines that systematically subordinate

persons associated with one political party and dilute

their voting strength, not for any legitimate government purpose, but simply to entrench the governing

political party in power. States may not place such unequal burdens on a group of voters’ opportunities to

elect their representatives simply because of the party

with which those voters associate. That is viewpoint

discrimination pure and simple. Such gerrymandering perverts our Constitution’s democratic principles,

changing the relationship between the people and

their elected representatives. It “enables politicians to

entrench themselves in power against the people’s

will.” Id. at 1935.

6

In our constitutional system, when the government abuses its authority, “the judicial department is

a constitutional check.” 2 Elliot’s Debates at 196. It is

precisely in cases, such as this one, where our nation’s

democracy is on the line that judicial redress is most

urgent and necessary. Gill, 138 S. Ct. at 1941 (Kagan,

J., concurring) (observing that, in the case of partisan

gerrymanders, “politicians’ incentives conflict with

voters’ interests, leaving citizens without any political

remedy for their constitutional harms”); Vieth, 541

U.S. at 311-12 (Kennedy, J., concurring in the judgment) (“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 United States v. Carolene Prods. Co.,

304 U.S. 144, 153 n.4 (1938))); Reynolds, 377 U.S. at

566 (“We are cautioned about the dangers of entering

into political thickets and mathematical quagmires.

Our answer is this: a denial of constitutionally protected rights demands judicial protection . . . .”)

Persons subjected to an abridgement of their First

and Fourteenth Amendment rights by an extreme partisan gerrymander should not be denied a remedy

simply because redistricting is inevitably a political

process. In our constitutional system, legislative majorities cannot use their broad powers to draw district

lines to nullify the essential premises of our system of

self-government. Because the partisan gerrymanders

in these cases subordinate adherents of one political

party, burden their representational rights, and dilute

and degrade their right to vote, the judgments below

should be affirmed.

7

ARGUMENT

I. At the Framing, the Constitution Established a System of Government in Which the

People Choose Their Elected Representatives, Not the Other Way Around.

More than two centuries ago, “We the People . . .

ordain[ed] and establish[ed]” the Constitution, see U.S.

Const. pmbl., creating a system of government organized around the idea that “the true principle of a republic is, that the people should choose whom they

please to govern them,” 2 Elliot’s Debates at 257. As

the opening words of the first of the Federalist Papers

stress, the Constitution was itself an act of popular

sovereignty and self-government.

The Federalist

No. 1, at 1 (Alexander Hamilton) (Clinton Rossiter rev.

ed., 1999) (“[Y]ou are called upon to deliberate on a

new Constitution for the United States of America.”).

At a time when “democratic self-government existed almost nowhere on earth,” Akhil Reed Amar,

America’s Constitution: A Biography 8 (2005), the

Framers designed a new system of government “where

the true principles of representation are understood

and practised, and where all authority flows from, and

returns at stated periods to, the people,” 4 Elliot’s Debates at 331; see The Federalist No. 14, supra, at 68

(James Madison) (“[E]ven in modern Europe, to which

we owe the great principle of representation, no example is seen of a government wholly popular and

founded, at the same time, wholly on that principle.”).

In the republican system of government created by the

Framers, “the representatives of the people” could

never be “superior to the people themselves.” Id. No.

78, at 435 (Alexander Hamilton).

Ensuring fair and effective representation for all

had deep roots in America’s bid for independence from

8

England. The Framers were familiar with what James

Madison called the “vicious representation in G. B.,”

1 Records of the Federal Convention, at 464, in which

“so many members were elected by a handful of easily

managed voters in ‘pocket’ and ‘rotten’ boroughs, while

populous towns went grossly underrepresented or not

represented at all,” Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 210 (1996). The Declaration of Independence

charged that King George III had forced the colonists

to “relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to

tyrants only.” The Declaration of Independence para.

5 (U.S. 1776). Having seen the political system manipulated for partisan ends in England, the Framers

strove to design a system that embodied the principle

that a “free and equal representation is the best, if not

the only foundation upon which a free government can

be built.” 2 Elliot’s Debates at 25; Gordon S. Wood, The

Creation of the American Republic, 1776–1787, at 170

(1998 ed.) (observing that of all “electoral safeguards

for the representational system” none “was as important to Americans as equality of representation”).

The Framers appreciated that the “genius of republican liberty seems to demand on one side not only that

all power should be derived from the people, but that

those intrusted with it should be kept in dependence

on the people.” The Federalist No. 37, supra, at 195

(James Madison).

These fundamental republican principles are amply reflected in the Constitution’s text and structure.

In order to ensure that “the foundations of this government should be laid on the broad basis of the people,”

4 Elliot’s Debates at 21, the Constitution provides that

“the House of Representatives shall be composed of

Members chosen every second Year by the People of

9

the several States.” U.S. Const. art. I, § 2, cl. 1. Thus,

while the Senate was designed to represent the states,

the House of Representatives would be “the grand depository of the democratic principle of the Govt.” and

“ought to know & sympathise with every part of the

community,” serving as “the most exact transcript of

the whole Society,” 1 Records of the Federal Convention at 48, 132. To ensure rights of fair and effective

representation, the Constitution allocates representatives to the states “according to their respective Numbers,” U.S. Const. art. I, § 2, cl. 3, reflecting that “‘every

individual of the community at large has an equal

right to the protection of government,’” Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016) (quoting 1 Records of

the Federal Convention at 473).

The Constitution also establishes explicit rules

concerning the right to vote in federal elections and to

run for Congress, recognizing that “[i]f the Legislature

could regulate those of either, it can by degrees subvert

the Constitution. A Republic may be converted into an

aristocracy or oligarchy as well by limiting the number

capable of being elected, as the number authorised to

elect.” 2 Records of the Federal Convention at 250. Because the “definition of the right of suffrage is very

justly regarded as a fundamental article of republican

government,” The Federalist No. 52, supra, at 294

(James Madison), the Framers provided that “[t]he

electors are to be the great body of the people of the

United States,” id. No. 57, at 319 (James Madison),

and incorporated state suffrage rules to broadly protect the right to vote in federal elections, id. (“Who are

to be the electors of the federal representatives? 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.”).

10

Along similar lines, the Constitution establishes

minimal qualification for candidates for federal office.

Id. (“Who are to be the objects of popular choice? Every

citizen whose merit may recommend him to the esteem

and confidence of his country. No qualification of

wealth, of birth, of religious faith, or of civil profession

is permitted to fetter the judgment or disappoint the

inclination of the people.”). Indeed, reflecting their

concern about partisan manipulation of the electoral

process, the Framers recognized that “[q]ualifications

founded on artificial distinctions may be devised, by

the stronger in order to keep out partizans of (a

weaker) faction.” 2 Records of the Federal Convention

at 250.

The Constitution also confers specific powers on

the federal government to ensure the integrity of the

system of government established by the Constitution.

The Guarantee Clause empowers the “United States”

to “guarantee to every State in this Union a Republican Form of Government,” U.S. Const. art. IV, § 4, protecting the Constitution’s system of government from

“aristocratic or monarchical innovation,” The Federalist No. 43, supra, at 242 (James Madison). Even more

on point, the Elections Clause of Article I, Section 4

gives Congress the power to override state regulation

of the time, place, and manner of federal elections, a

reflection of the Framers’ “distrust of the States regarding elections.” U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 811 n.21 (1995). As history shows, this

grant of power was “a safeguard against manipulation

of electoral rules by politicians and factions in the

States to entrench themselves or place their interests

over those of the electorate.” Ariz. State Legislature,

135 S. Ct. at 2672; see Vieth, 541 U.S. at 275 (discussing the Framers’ conclusion that “Congress must be

11

given the power to check partisan manipulation of the

election process by the States”).

During the debates over the Elections Clause at

the Constitutional Convention, James Madison argued

that a limit on state power was necessary because

“[w]henever the State Legislatures had a favorite

measure to carry, they would take care so to mould

their regulations as to favor the candidates they

wished to succeed.” 2 Records of the Federal Convention at 241. The Elections Clause gave “a controuling

power to the Natl. legislature,” id., because “State Legislatures will sometimes fail or refuse to consult the

common interest at the expense of their local conveniency or prejudices,” id. at 240. Madison observed that

“[i]t was impossible to foresee all the abuses that

might be made of the discretionary power,” id., noting

that there were many ways—including districting—

that state legislative majorities might manipulate the

democratic process in order to “materially affect the

appointments,” id. at 241.

In debates over the Elections Clause during state

ratifying conventions, those urging the Constitution’s

ratification justified “Congress’s power over elections

as a way of correcting unjust state voting systems and

defending the people’s right to equal voting power.”

Pauline Maier, Ratification: The People Debate the

Constitution, 1787–1788, at 210 (2010). For example,

at the Massachusetts convention, Theophilus Parsons

explained that the Elections Clause provided a remedy

against state manipulation of the democratic process

for partisan ends. “[W]hen faction and party spirit run

high,” Parsons warned, state legislative majorities

“might make an unequal and partial division of the

states into districts for the election of representatives”

or “introduce [other] such regulations as would render

the rights of the people insecure and of little value.”

12

2 Elliot’s Debates at 27. The Elections Clause, he argued, “provides a remedy,” empowering Congress to

“restore to the people their equal and sacred rights of

election.” Id.

During these debates, the Constitution’s supporters often pointed to the case of South Carolina, where

“South Carolina’s coastal elite had malapportioned

their legislature, and wanted to retain the ability to do

so.” Ariz. State Legislature, 135 S. Ct. at 2672 (citing

Rakove, supra, at 223-24); see 2 Elliot’s Debates at 51

(“The representatives, therefore, from [South Carolina], will not be chosen by the people, but will be representatives of a faction of that state. If the general

government cannot control in this case, how are the

people secure?”); 3 id. at 367 (“Elections are regulated

now unequally in some states, particularly South Carolina . . . . Should the people of any state by any means

be deprived of the right of suffrage, it was judged

proper that it should be remedied by the general government.”).

In short, from the very beginnings of our Constitution’s history, attempts by state majorities to manipulate the electoral process have been viewed with deep

suspicion. As a consequence, many provisions of the

Constitution were drafted to create a republican system of government that helps “secure a representation

from every part, and prevent any improper regulations, calculated to answer party purposes only.” 1 Annals of Cong. 797 (1789) (Joseph Gales ed., 1834).

13

II. Subsequent Amendments to the Constitution Protect the Right of Individuals To Associate for Political Ends and Guarantee

that All Americans Enjoy Equal Protection

of the Laws, Regardless of Political Affiliation.

In 1789, the Framers added the First Amendment

to the Constitution, protecting “[t]he special structural

role of freedom of speech in a representative democracy.” Amar, The Bill of Rights, supra, at 25. As this

Court has long recognized, the First Amendment “‘remove[s] governmental restraints from the arena of

public discussion, putting the decision as to what

views shall be voiced largely into the hands of each of

us, . . . in the belief that no other approach would comport with the premise of individual dignity and choice

upon which our political system rests.’” McCutcheon,

572 U.S. at 203 (quoting Cohen v. California, 403 U.S.

15, 24 (1971)). This reflects that “the right of electing

the members of the government constitutes more particularly the essence of a free and responsible government.” Madison, Report on the Virginia Resolutions,

in 4 Elliot’s Debates at 575; see Cal. 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.”); Elrod v. Burns,

427 U.S. 347, 372 (1976) (“[T]he system of government

the First Amendment was intended to protect” is a

“democratic system whose proper functioning is indispensably dependent on the unfettered judgment of

each citizen on matters of political concern.”).

In this respect, the First Amendment reflects our

Constitution’s promise of popular sovereignty: “[I]n

our governments, the supreme, absolute, and

14

uncontrollable power remains in the people.” 2 Elliot’s

Debates at 432; see Madison, Report on the Virginia

Resolutions, in 4 Elliot’s Debates at 569 (“[I]n the

United States, . . . [t]he people, not the government,

possess the absolute sovereignty.”). In other words,

“[w]hen it comes to protected speech, the speaker is

sovereign.” Ariz. Free Enter., 564 U.S. at 754. As Madison put it, “[i]f we advert to the nature of Republican

Government, we shall find that the censorial power is

in the people over the Government, and not in the Government over the people.” 4 Annals of Cong. 934

(1794). The First Amendment ensures that “those in

power” may not “derive an undue advantage for continuing themselves in it; which, by impairing the right

of election, endangers the blessings of the government

founded on it.” Madison, Report on the Virginia Resolutions, in 4 Elliot’s Debates at 576.

The First Amendment originally constrained only

the federal government, but when the Fourteenth

Amendment was added to the Constitution nearly seventy years later, it required states to obey the guarantees of free speech and association secured by the First

Amendment. It also guaranteed the equal protection

of the laws to all persons, thereby providing protection

against the possibility that persons affiliated with a

disfavored political party would be subject to unequal

treatment under state law. That Amendment, along

with the other “constitutional Amendments adopted in

the aftermath of the Civil War[,] fundamentally altered our country’s federal system,” McDonald v. City

of Chicago, 561 U.S. 742, 754 (2010), adding to the

Constitution sweeping new limits on state governments. These limits were designed to secure “the civil

rights and privileges of all citizens in all parts of the

republic,” see Report of the Joint Committee on Reconstruction, 39th Cong., 1st Sess., at xxi (1866), to “keep[]

15

whatever sovereignty [a State] may have in harmony

with a republican form of government and the Constitution of the country,” Cong. Globe, 39th Cong., 1st

Sess. 1088 (1866).

The plain text of the Fourteenth Amendment,

which prohibits a state from denying to “any person”

the “equal protection of the laws,” establishes a broad

guarantee of equality for all persons, forbidding legislative majorities from discriminating against disfavored persons. See Yick Wo, 118 U.S. at 369 (“These

provisions are universal in their application, to all persons within the territorial jurisdiction, without regard

to any differences of race, of color, or of nationality . . . .”); Romer v. Evans, 517 U.S. 620, 623 (1996)

(the “Equal Protection Clause enforces” a “commitment to the law’s neutrality where the rights of persons are at stake”).

As history shows, the original meaning of the

equal protection guarantee “establishes equality before the law,” Cong. Globe, 39th Cong., 1st Sess. 2766

(1866), “abolishes all class legislation in the States and

does away with the injustice of subjecting one caste of

persons to a code not applicable to another,” id. The

Fourteenth Amendment “put in the fundamental law

the declaration that all good citizens were entitled

alike to equal rights in this Republic,” Speech of Sen.

Lyman Trumbull at the Illinois Rail Road Depot, Chicago (Aug. 2, 1866), in Cincinnati Com., Nov. 23, 1866,

at 6, placing all “throughout the land upon the same

footing of equality before the law, in order to prevent

unequal legislation,” Speech of Major Gen. Robert C.

Schenck at Dayton, Ohio (Aug. 18, 1866), in Cincinnati

Com., Nov. 23, 1866, at 13.

The Fourteenth Amendment’s Framers crafted a

broad guarantee of equality for all persons to bring the

Constitution back into line with fundamental

16

principles of American equality, which had been betrayed and stunted by the institution of slavery. See

McDonald, 561 U.S. at 807 (Thomas, J., concurring in

part and concurring in the judgment) (“[S]lavery, and

the measures designed to protect it, were irreconcilable with the principles of equality . . . and inalienable

rights proclaimed by the Declaration of Independence

and embedded in our constitutional structure.” (citing

3 Records of the Federal Convention, at 212)). After

nearly a century in which the Constitution sanctioned

racial slavery and allowed all manner of state-sponsored discrimination, the Fourteenth Amendment codified our nation’s founding promise of equality through

the text of the Equal Protection Clause. As the

Amendment’s Framers explained, the guarantee of the

equal protection of the laws was “essentially declared

in the Declaration of Independence.” Cong. Globe,

39th Cong., 1st Sess. 2961 (1866).

Thus, the Amendment’s broad wording was no accident. When the 39th Congress drafted the Fourteenth Amendment, it chose broad, universal language

specifically intended to secure equal rights for all. Although the Amendment was written and ratified in the

aftermath of the Civil War and the end of slavery, it

protects all persons. “[S]ection 1 pointedly spoke not

of race but of more general liberty and equality.”

Amar, The Bill of Rights, supra, at 260-61 n.*. Indeed,

the Reconstruction-Era Framers specifically considered and rejected proposed constitutional language

that would have outlawed racial discrimination and

nothing else, see Benj. B. Kendrick, The Journal of the

Joint Committee of Fifteen on Reconstruction, 39th

Congress, 1865–1867, at 46, 50, 83 (1914), preferring a

universal guarantee of equality that secured equal

rights to all persons. Whether the proposals were

broad in scope or were narrowly drafted to prohibit

17

racial discrimination in civil rights, the Framers of the

Fourteenth Amendment consistently rejected limiting

the Amendment’s equality guarantee to racial discrimination.

The Framers wrote the Amendment’s guarantees

broadly because, among other things, they were concerned about state efforts in the South to single out for

discrimination persons belonging to or associated with

the Republican party, which had supported the Union

during the Civil War and opposed efforts to reinstitute

slavery. The Framers were aware of “the white

South’s inability to adjust to the end of slavery, the

widespread mistreatment of blacks, Unionists, and

Northerners, and a pervasive spirit of disloyalty.” Eric

Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 225 (Perennial Classics 2002 ed.);

see McDonald, 561 U.S. at 779 (plurality opinion) (discussing the “plight of whites in the South who opposed

the Black Codes”). In the South, Unionists associated

with the Republican party were subject to all manner

of discrimination because of their views. Debates in

the 39th Congress repeatedly made the point that

“[t]he courts are rebel, jurors rebel, Legislatures rebel

. . . . They do not disguise their hate for Union men,”

Cong. Globe, 39th Cong., 1st Sess. 783 (1866), and

therefore “the adoption of this Amendment” was “essential to the protection of the Union men” who “will

have no security in the future except by force of national laws giving them protection against those who

have been in arms against them,” id. at 1093; id. at

1263 (“[W]hite men . . . have been driven from their

homes, and have had their lands confiscated in State

courts, under State laws, for the crime of loyalty to

their country . . . .”).

This sad state of affairs was documented in painstaking detail in the report of the Joint Committee on

18

Reconstruction, “which was widely reprinted in the

press and distributed by Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amendment,” McDonald, 561

U.S. at 772, and “extensively catalogued the abuses of

civil rights in the former slave States,” id. at 827

(Thomas, J., concurring). The Committee, which took

the “testimony of a great number of witnesses,” Cong.

Globe, 39th Cong., 1st Sess. 2765 (1866), learned of a

deep-seated hostility to both the newly freed slaves

and their Republican allies. The witnesses the Committee spoke with confirmed that, in the South,

“[t]here is . . . a feeling of great bitterness towards the

[R]epublican party” and that people “look upon them

with the greatest hatred, the greatest ill-will imaginable for one class of men to feel towards another.” Report of the Joint Committee, pt. II, at 66, 208. As a

result, the Committee concluded that, without federal

protection, “Union men, whether of northern or southern origin, would be obliged to abandon their homes”

because of animus “totally averse to the toleration of

any class of people friendly to the Union, be they white

or black.” Id. at xvii; id. at xvii-xviii (“Southern men

who adhered to the Union are bitterly hated and relentlessly persecuted.”). Numerous witnesses confirmed that civil rights protections could not be enjoyed because a “loyal man” could not “get his rights in

the courts” due to “prejudice,” id. pt. II, at 97, that

newly formed governments “would legislate against

them in every way,” id. pt. I, at 106, and that it was

unlikely that persons “would be allowed to express

openly their Union sentiments without the protection

of the United States troops,” id. pt. III, at 101. Should

a Republican Unionist run for office “[h]e would have

no chance at all”; “[t]hey would break up their polls

and destroy their ballots.” Id. pt. IV, at 81.

19

To prevent these sorts of past abuses as well as

new ones that might arise in the future, the Fourteenth Amendment established equality under the law

as a constitutional mandate, forbidding state majorities from using the democratic process to subject disfavored persons—whether by reason of their race,

their political views, or some other form of animus—to

discriminatory treatment and the loss of their fundamental rights. This sweeping guarantee of equality

applies to Appellees in this case, who seek to enjoy the

“right to participate in electing our political leaders,”

McCutcheon, 572 U.S. at 191, on an equal basis with

all other voters in their state. “To the extent that a

citizen’s right to vote is debased, he is that much less

a citizen.” Reynolds, 377 U.S. at 567.

There is no “redistricting” exception to these fundamental Fourteenth Amendment principles. The

text of the Fourteenth Amendment’s guarantee of

equality “speaks in general terms, and those are as

comprehensive as possible.” Strauder v. West Virginia, 100 U.S. 303, 310 (1880). Moreover, the right to

vote is a fundamental right, “preservative of all

rights.” Yick Wo, 118 U.S. at 370. Indeed, no right is

protected by more parts of the Constitution. U.S.

Const. amend. XIV, § 2; id. amend. XV, § 1; id. amend.

XIX, § 1; id. amend. XXIV, § 1; id. amend. XXVI, § 1;

see Shelby County v. Holder, 570 U.S. 529, 567 n.2

(2013) (Ginsburg, J., dissenting) (“The Constitution

uses the words ‘right to vote’ in five separate places:

the Fourteenth, Fifteenth, Nineteenth, TwentyFourth, and Twenty-Sixth Amendments.”). A districting plan that, in essence, “declar[es] that in general it

shall be more difficult for one group of citizens”—defined by their political views—“to seek aid from the

government” through the political process is “itself a

denial of equal protection of the laws in the most literal

20

sense.” Romer, 517 U.S. at 633; Vieth, 541 U.S. at 312

(Kennedy, J., concurring in the judgment) (“If a State

passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party

X’s rights to fair and effective representation’ . . . we

would surely conclude the Constitution had been violated.”).

III. Partisan Gerrymandering that Has the Purpose and Effect of Subordinating Adherents

of a Political Party and Severely Limiting

the Effectiveness of Their Votes Violates the

First and Fourteenth Amendments.

Three lines of this Court’s precedents strongly support the proposition that extreme partisan gerrymanders that subordinate adherents of a political party

and severely limit the effectiveness of their votes violate the First and Fourteenth Amendments. As these

cases make clear, when a state uses “partisan classifications” in a manner that “burdens rights of fair and

effective representation,” Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment), and violates

“‘the core principle of republican government,’ namely,

‘that the voters should choose their representatives,

not the other way around,’” Ariz. State Legislature, 135

S. Ct. at 2677 (citation omitted), judicial relief is warranted, see Reynolds, 377 U.S. at 566 (“[A] denial of

constitutionally protected rights demands judicial protection; our oath and our office require no less of us.”).

A plan that so degrades the rights of persons belonging

to or associated with a disfavored party cannot be

squared with “[t]he concept of ‘we the people’ under the

Constitution,” which “visualizes no preferred class of

voters but equality among those who meet the basic

qualifications.” Gray v. Sanders, 372 U.S. 368, 379-80

(1963).

21

First, this Court’s one-person, one-vote cases have

held that “[s]ince the achieving of fair and effective

representation for all citizens is concededly the basic

aim of legislative apportionment, . . . the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.” Reynolds, 377 U.S. at 565-66. Reynolds held unconstitutional a state legislative districting scheme

that gave disproportionate political representation to

persons living in rural areas, concluding that “[d]iluting the weight of votes because of place of residence

impairs basic constitutional rights under the Fourteenth Amendment.” Id. at 566; see Bd. of Estimate v.

Morris, 489 U.S. 688, 693-94 (1989) (“If districts of

widely unequal population elect an equal number of

representatives, the voting power of each citizen in the

larger constituencies is debased and the citizens in

those districts have a smaller share of representation

than do those in the smaller districts.”); Kirkpatrick v.

Preisler, 394 U.S. 526, 531 (1969) (Reynolds’ rule is

“designed to prevent debasement of voting power and

diminution of access to elected representatives.”).

Reynolds stressed equal protection principles as

well as republican principles deeply rooted in the text

and structure of the Constitution. “As long as ours is

a representative government, and our legislatures are

those instruments of government elected directly by

and directly representative of the people, the right to

elect legislators in a free and unimpaired fashion is a

bedrock of our political system.” Reynolds, 377 U.S. at

562. Any other result would “sanction minority control

of state legislative bodies” and prevent legislatures

from being “collectively responsive to the popular will.”

Id. at 565. A system that gave persons more political

power based on where they lived burdened voters’ representational rights, denying certain citizens “an

22

equally effective voice in the election of members of his

state legislature.” Id.

Second, this Court’s cases have also vindicated the

rights of racial minorities to participate equally in the

political process by preventing at-large and multimember districting schemes from “being used invidiously to cancel out or minimize the voting strength of

racial groups.” White v. Regester, 412 U.S. 755, 765

(1973); see Gomillion v. Lightfoot, 364 U.S. 339, 347

(1960) (striking down redrawing of boundaries designed to “despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights”).

Drawing on Reynolds, this Court’s cases have affirmed

that “[t]he right to vote can be affected by a dilution of

voting power as well as by an absolute prohibition on

casting a ballot,” Allen v. State Bd. of Elections, 393

U.S. 544, 569 (1969), and that plaintiffs may establish

an unconstitutional burden on their representational

rights by demonstrating that racial minorities “had

less opportunity than did other residents in the district

to participate in the political processes and to elect legislators of their choice,” White, 412 U.S. at 766; see

Rogers v. Lodge, 458 U.S. 613, 617 (1982) (“[M]ultimember districts violate the Fourteenth Amendment

if ‘conceived or operated as purposeful devices to further racial discrimination’ by minimizing, cancelling

out or diluting the voting strength of racial elements

in the voting population.” (quoting Whitcomb v.

Chavis, 403 U.S. 124, 149 (1971))); Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (“multimember districts may be vulnerable, if racial or political groups

have been fenced out of the political process and their

voting strength invidiously minimized”). These cases,

thus, quite explicitly protect “rights of fair and effective representation,” Vieth, 541 U.S. at 312 (Kennedy,

J., concurring in the judgment), by ensuring “that each

23

citizen ha[s] an equally effective voice in the election

of members of his state legislature,” Reynolds, 377

U.S. at 565.

Likewise, this Court’s cases construing the results

test of Section 2 of the Voting Rights Act, a statute that

enforces constitutional protections, have held that

states may not “dilut[e] minority voting power” by the

“manipulation of district lines.” Voinovich v. Quilter,

507 U.S. 146, 153 (1993); Thornburg v. Gingles, 478

U.S. 30, 46 n.11 (1986) (“Dilution of racial minority

group voting strength may be caused by the dispersal

of blacks into districts in which they constitute an ineffective minority of voters or from the concentration

of blacks into districts where they constitute an excessive majority.”); League of United Latin Am. Citizens

v. Perry, 548 U.S. 399, 428-29 (2006) (finding that redrawing of lines to reduce percentage of Latino voting

age population “prevented the immediate success of

the emergent Latino majority” and resulted in “a denial of opportunity in the real sense of that term”).

Manipulation of district lines—whether through packing or cracking voters—can burden voters’ representational rights by severely limiting the effectiveness of

their votes. See Gill, 138 S. Ct. at 1930-31. “When a

voter resides in a packed district, her preferred candidate will win no matter what; when a voter lives in a

cracked district, her chosen candidate stands no

chance of prevailing. But either way, such a citizen’s

vote carries less weight—has less consequence—than

it would under a neutrally drawn map.” Id. at 1936

(Kagan, J., concurring). That is exactly what the evidence shows happened in these cases. See Br. of Appellees League of Women Voters of North Carolina, et

al. (“LWV Br.”) 9-14; Br. of Appellees Common Cause,

et al. (“CC Br.”) 8-12; Br. of Appellees Benisek, et al.

(“Benisek Br.”) 8-11.

24

Third, and finally, this Court’s First Amendment

cases have repeatedly struck down efforts to subordinate persons belonging to or associated with a political

party disfavored by the state. “[P]olitical belief and

association constitute the core of those activities protected by the First Amendment,” Elrod v. Burns, 427

U.S. at 356, and the “right to associate with the political party of one’s choice is an integral part of this basic

constitutional freedom,” Kusper v. Pontikes, 414 U.S.

51, 57 (1973); see Cal. Democratic Party, 530 U.S. at

574 (recognizing that “the First Amendment protects

‘the freedom to join together in furtherance of common

political beliefs’” (quoting Tashjian v. Republican

Party of Conn., 479 U.S. 208, 214-15 (1986))). Subordinating adherents of a disfavored political party

“based on disapproval of the[ir] ideas or perspectives”

is “the essence of viewpoint discrimination.” Matal v.

Tam, 137 S. Ct. 1744, 1765, 1766 (2017) (Kennedy, J.,

concurring in part and concurring in the judgment);

LWV Br. 51; CC Br. 53-55; Benisek Br. 24-29.

As this Court’s precedents make clear, “First

Amendment concerns arise where a State enacts a law

that has the purpose and effect of subjecting a group

of voters or their party to disfavored treatment by reason of their views,” Vieth, 541 U.S. at 314 (Kennedy,

J., concurring in the judgment), because “the system of

government the First Amendment was intended to

protect” is a “democratic system whose proper functioning is indispensably dependent on the unfettered

judgment of each citizen on matters of political concern,” Elrod, 427 U.S. at 372. The First Amendment

does not permit the state to subject to disfavored treatment persons whose “beliefs and associations” do not

“conform . . . to some state-selected orthodoxy,” Rutan

v. Republican Party of Ill., 497 U.S. 62, 75 (1990), in

order to “tip[] the electoral process in favor of the

25

incumbent party,” Elrod, 427 U.S. at 356; Heffernan v.

City of Paterson, 136 S. Ct. 1412, 1417 (2016) (“With a

few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate . . . . The basic constitutional requirement reflects the First Amendment’s hostility to government action that ‘prescribe[s] what shall be orthodox in politics.’” (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943))).

“[G]overnment discrimination based on the viewpoint of one’s speech or one’s political affiliations” is

simply antithetical to the First Amendment. See Bd.

of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 683 (1996);

O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S.

712, 721 (1996) (refusing to permit government to “coerce support” simply because of “dislike of the individual’s political association”); Bd. of Educ., Island Trees

Union Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 870-71

(1982) (“If a Democratic school board, motivated by

party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that

the order violated the constitutional rights of the students denied access to those books.”).

The First Amendment analysis that applies in

these cases and in others involving state regulation of

the electoral process “concentrates on whether the legislation burdens the representational rights of the

complaining party’s voters for reasons of ideology, beliefs, or political association.” Vieth, 541 U.S. at 315

(Kennedy, J., concurring in the judgment). This

Court’s cases insist on a “pragmatic or functional assessment that accords some latitude to the States,” id.;

see Burdick v. Takushi, 504 U.S. 428, 434 (1992), while

ensuring “the right of individuals to associate for the

advancement of political beliefs, and the right of

26

qualified voters, regardless of their political persuasion, to cast their votes effectively,” Williams v.

Rhodes, 393 U.S. 23, 30 (1968).

Under these established First Amendment principles, “it is especially difficult for the State to justify a

restriction that limits political participation by an

identifiable political group whose members share a

particular viewpoint, associational preference, or economic status.” Anderson, 460 U.S. at 793. That reflects that “[c]ompetition in ideas and governmental

policies is at the core of our electoral process and of the

First Amendment freedoms.” Williams, 393 U.S. at 32.

Because “voters can assert their preferences only

through candidates or parties or both,” Anderson, 460

U.S. at 787, efforts by a state to subordinate adherents

of a disfavored party and severely limit the effectiveness of their votes cannot be squared with the fundamental limits enshrined in the First Amendment. The

First Amendment denies the government the authority to entrench one party in power. In the electoral

arena—where First Amendment protection is at its

apex—“the people lose when the government is the one

deciding which ideas should prevail.” NIFLA v.

Becerra, 138 S. Ct. 2361, 2375 (2018). The First

Amendment prevents the government from “favor[ing]

some participants in th[e democratic] process over others.” McCutcheon, 572 U.S. at 227; Davis v. FEC, 554

U.S. 724, 742 (2008) (“[I]t is a dangerous business for

Congress to use the election laws to influence the voters’ choices.”); LWV Br. 38-39.

It is, of course, true that “[p]olitics and political

considerations are inseparable from districting and

apportionment” and that “districting inevitably has

and is intended to have substantial political consequences.” Gaffney, 412 U.S. at 753. But a state does

not have carte blanche to draw district lines free from

27

constitutional constraints. See id. at 754 (“What is

done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth

Amendment.”); Gomillion, 364 U.S. at 345 (refusing to

“sanction the achievement by a State of any impairment of voting rights whatever so long as it was

cloaked in the garb of the realignment of political subdivisions”); cf. Rutan, 497 U.S. at 64 (“To the victor belong only those spoils that may be constitutionally obtained.”). The fact that the government makes political choices in districting does not carry with it a license

to subordinate a group of voters and dilute their right

to vote because of their political affiliation.

In sum, republican principles embedded in the Constitution’s text and structure, fundamental First

Amendment principles that safeguard freedom of political association, and equal protection principles that

ensure equal rights under the law for all persons, regardless of their political convictions—principles

deeply rooted in the Constitution’s text and history

and this Court’s precedents—do not permit the government to use its power over the districting process to

give disproportionate political power to a group of citizens based on their political association and views.

This “ingrained structural inequality,” Evenwel, 136 S.

Ct. at 1123—like the malapportionment invalidated in

Reynolds and the cases that followed it—singles out a

group of citizens and dilutes and debases their right to

vote in a manner manifestly inconsistent with constitutional guarantees and the system of fair and effective representation our Constitution establishes. “To

the extent that a citizen’s right to vote is debased, he

is that much less a citizen.” Reynolds, 377 U.S. at 567.

The fact that an individual belongs to one political

party or another “is not a legitimate reason for . . .

28

diluting the efficacy of his vote.” Id.; Carrington v.

Rash, 380 U.S. 89, 94 (1965) (“‘Fencing out’ from the

franchise a sector of the population because of the way

they may vote is constitutionally impermissible.”).

In light of these fundamental constitutional principles, “[a] determination that a gerrymander violates

the law must rest on something more than the conclusion that political classifications were applied.” Vieth,

541 U.S. at 307 (Kennedy, J., concurring in the judgment); Gaffney, 412 U.S. at 752 (“It would be idle . . . .

to contend that any political consideration taken into

account in fashioning a reapportionment plan is sufficient to invalidate it.”). The fact that a state legislature drew district lines with political considerations in

mind is the beginning, not the end, of the analysis.

“The inquiry is not whether political classifications

were used. The inquiry instead is whether political

classifications were used to burden a group’s representational rights.” Vieth, 541 U.S. at 315 (Kennedy, J.,

concurring in the judgment). In other words, there

must be a showing that “partisan classifications burden[] rights of fair and effective representation.” Id. at

312. This requires a demonstration that a partisan

gerrymander has the purpose and effect of subordinating adherents of a political party and severely limiting

the effectiveness of their votes, conferring legislative

power far in excess of votes cast at the polls. It requires showing that the partisan gerrymander unjustifiably obstructs the basic workings of representative

government, “subjecting a group of voters or their

party to disfavored treatment by reason of their

views.” Id. at 314. These inquiries provide judicially

manageable standards for separating ordinary political line drawing from unconstitutional efforts to degrade and dilute a group of voters’ opportunities to

29

elect representatives on account of their political affiliation.

Under these standards, the extreme gerrymanders

in these cases, which turn our Constitution’s system of

representative government on its head, cannot be

squared with the First and Fourteenth Amendments.

A state cannot enact into law the view that “electing

Republicans is better than electing Democrats,” Rucho

J.A. 460, or that electing Democrats is better than

electing Republicans. A state cannot use its considerable power to draw lines to nullify the fundamental

principles at the core of our Constitution’s system of

government.

IV. The Constitution Requires Redress by the

Courts When States Subordinate Adherents

of a Political Party Based on Viewpoint in

Violation of the First and Fourteenth

Amendments.

Judicial relief is warranted here. “[W]hen the

rights of persons are violated, ‘the Constitution requires redress by the courts’ . . . . The Nation’s courts

are open to injured individuals who come to them to

vindicate their own direct, personal stake in our basic

charter.” Obergefell v. Hodges, 135 S. Ct. 2584, 2605

(2015) (quoting Schuette v. Coal. to Defend Affirmative

Action, 572 U.S. 291, 313 (2014)). Although this case,

like many others, is undeniably sensitive and demands

careful judgment, “this is what courts do.” Zivotofsky

ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012).

Both at the Founding and following the Civil War,

our Constitution’s Framers insisted that constitutional limitations “can be preserved in practice no

other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary

to the manifest tenor of the Constitution void. Without

30

this, all the reservations of particular rights or privileges would amount to nothing.” The Federalist No.

78, supra, at 434 (Alexander Hamilton); 3 Elliot’s Debates at 554 (“To what quarter will you look for protection from an infringement on the Constitution, if you

will not give the power to the judiciary? There is no

other body that can afford such a protection.”). The

Framers created the Article III judiciary to “guard the

Constitution and the rights of individuals from . . . designing men” who have a “tendency . . . to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” The

Federalist No. 78, supra, at 437 (Alexander Hamilton);

id. No. 10, at 49 (James Madison) (discussing the need

to ensure that “the majority” would be “unable to concert and carry into effect schemes of oppression”).

Like their counterparts at the Founding, the Framers of the Fourteenth Amendment recognized that judicial review was essential to ensure that the Amendment’s constitutional protections “cannot be wrested

from any class of citizens, or from the citizens of any

State by mere legislation.” Cong. Globe, 39th Cong.,

1st Sess. 1095 (1866). The Framers understood that

the “object of a Constitution is not only to confer power

upon the majority, but to restrict the power of the majority and to protect the rights of the minority.” Id.

“[T]he greatest safeguard of liberty and of private

rights,” they recognized, is to be found in the “fundamental law that secures those private rights, administered by an independent and fearless judiciary.” Cong.

Globe, 41st Cong., 2d Sess. 94 (1869).

As the Constitution’s text and history reflect, “[t]he

idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to

place them beyond the reach of majorities and officials

and to establish them as legal principles to be applied

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by the courts.” Obergefell, 135 S. Ct. at 2605-06 (quoting Barnette, 319 U.S. at 638). This Court “cannot . . .

ask another Branch to share [its] responsibility” to engage in judicial review of challenged state action.

Texas v. Johnson, 491 U.S. 397, 420 (1989) (Kennedy,

J., concurring).

Thus, it is of no moment that the Elections Clause

gives Congress the power to prescribe a remedy for

partisan gerrymandering in congressional redistricting. This Court cannot delegate to Congress its constitutional role to “say what the law is” and enforce the

Constitution’s status as “the fundamental and paramount law of the nation.” Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803). That would permit the

fundamental limits imposed by the First and Fourteenth Amendments to be “passed as pleasure.” Id. at

178. Indeed, this Court has repeatedly refused to “immunize state congressional apportionment laws which

debase a citizen’s right to vote from the power of courts

to protect the constitutional rights of individuals from

legislative destruction,” Wesberry v. Sanders, 376 U.S.

1, 6 (1964), simply because of the possibility that Congress could act under the Elections Clause. The authority granted by the Elections Clause “does not extinguish the State’s responsibility to observe the limits

established by the First Amendment rights of the

State’s citizens.” Tashjian, 479 U.S. at 217; LWV Br.

40-44; CC Br. 35-37; Benisek Br. 28. Whether or not

Congress imposes regulations of its own, the Fourteenth Amendment requires states to respect First

Amendment freedoms and obliges courts to intervene

if they do not.

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CONCLUSION

For the foregoing reasons, the judgments of the

district courts should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 8, 2019

* Counsel of Record