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

Supreme Court briefMar 8, 2019

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IN THE

Supreme Court of the United States

___________

LINDA H. LAMONE, ET AL.,

Appellants,

O. JOHN BENISEK, ET AL.,

_____________

Appellees.

On Appeal from the United States District Court

for the District of Maryland

_____________

BRIEF OF AMICUS CURIAE

SENATOR SHELDON WHITEHOUSE

IN SUPPORT OF APPELLEES

_____________

Kathryn Cahoy

COVINGTON & BURLING LLP

3000 El Camino Real

5 Palo Alto Square

Palo Alto, CA 94306

(650) 632-4700

Mark W. Mosier

Counsel of Record

Ryan Mowery

Kathleen Choi

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

mmosier@cov.com

(202) 662-6000

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 2

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

Partisan Gerrymandering Has Become A

Tool For Powerful Interests To Distort The

Democratic Process................................................ 5

Vieth Opened The Door To Extreme

Partisan Gerrymandering............................. 6

Dark Money Fuels Partisan

Gerrymandering On Both Sides Of

The Aisle. ...................................................... 12

Partisan Gerrymandering Produces

Uncompetitive And Unrepresentative

Districts That Have A Corrosive

Effect On Our Democracy. .......................... 17

II. The Court Should Curb The Rise Of

Partisan Gerrymandering By Affirming

The District Court Decisions. ............................. 22

CONCLUSION............................................................. 27

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Celebrezze, 460 U.S. 780 (1983) .............24

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

135 S. Ct. 2652 (2015) ....................................... 3, 23

Comm. for a Fair and Balanced Map v.

Ill. State Bd. of Elections,

835 F. Supp. 2d 563 (N.D. Ill. 2011) .....................11

Davis v. Bandemer, 478 U.S. 109 (1986)....................26

Gaffney v. Cummings,412 U.S. 735 (1973) ................23

Gill v. Whitford, 138 S. Ct. 1916 (2018) ................ 1, 18

League of United Latin Am. Citizens v.

Perry, 548 U.S. 399 (2006) .....................................26

League of Women Voters of Pa. v. Commonwealth

of Pa., 181 A.3d 1083 (Pa. 2018) .............................9

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .............27

Powell v. McCormack, 395 U.S. 486 (1969) ...............18

Reynolds v. Sims, 377 U.S. 533 (1964) .......................22

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990)...................................................26

iii

Vieth v. Jubelirer, 541 U.S. 267 (2004) ............. passim

Whitford v. Gill,

218 F. Supp. 3d 837 (W.D. Wis. 2016) ....................8

Other Authorities

About, America Votes,

https://americavotes.org/about/ .............................15

Bill Allison & Sarah Harkins, Sunlight

Found., Fixed Fortunes: Biggest

Corporate Political Interests Spend

Billions, Get Trillions (Nov. 17,

2014) .........................................................................17

Americans Across Party Lines Oppose

Common Gerrymandering Practices,

The Harris Poll (Nov. 7, 2013)...............................20

Emily Bazelon, The New Front in the Gerrymandering Wars: Democracy vs.

Math, N.Y. Times Mag. (Aug. 29, 2017) .... 3, 12, 21

Michael Beckel, Secret Donors Fuel

Democratic Political Powerhouse, Ctr.

for Pub. Integrity (Nov. 18, 2015) .........................16

Richard Berman, The Democrats’ Dark

Money Hypocrisy, The Hill (May 5,

2016 9:00 AM ET) ............................................ 15, 16

Nathan S. Catanese, Note,

Gerrymandered Gridlock: Addressing

the Hazardous Impact of Partisan

Redistricting, 28 Notre Dame J. L.

Ethics & Pub. Pol’y 323, 329 (2014)................. 9, 12

Laurence Cockroft & Anne-Christine

Wegener, Unmasked (2017) ...................................17

Betsy Cooper, et al., PRRI, The Divide

Over America’s Future: 1950 or

2050? Findings From the 2016

American Values Survey (Oct. 25,

2016) .........................................................................19

Fred Dews, A Primer on Gerrymandering

and Political Polarization, Brookings

(July 6, 2017) .................................................... 19, 21

Martin Gilens & Benjamin I. Page, Testing Theories of American Politics:

Elites, Interest Groups, and Average

Citizens, 12 Perspectives on Politics

564, 575 (Sept. 2014) ..............................................20

Matea Gold, Wealthy Donors on Left

Launch New Plan to Wrest Back Control

in the States, Wash. Post (Apr. 12, 2015) .............16

J. Gerald Hebert, et al., A.B.A., The Realist’s Guide to Redistricting: Avoiding the Legal Pitfalls (2d ed. 2010) .........................4

Andrew Jackson, Veto Message

Regarding the Bank of the United

States (July 10, 1832) ...............................................6

Brian Klaas, The Despot’s Accomplice:

How the West is Aiding and Abetting

the Decline of Democracy (2017)..................... 19, 21

Chisun Lee, et al., Brennan Ctr. for

Justice, Secret Spending in the

States 3 (June 26, 2016) .........................................16

Niccolo Machiavelli, The Prince (1513) ........................5

Jane Mayer, Dark Money: The Hidden

History of the Billionaires Behind the

Rise of the Radical Right (2016)............................12

Anthony J. McGann, et al.,

Gerrymandering in America: The

House of Representatives, the

Supreme Court, and the Future of

Popular Sovereignty 5 (2016).......................... 7, 8, 9

Stephen Ohlemacher, GOP Gerrymandering Creates Uphill Fight for Dems

in the House, PBS NewsHour (Mar.

31, 2014) ...................................................................10

Peter Overby, NPR News

Investigations, From Social Welfare

Groups, a River of Political Influence

(Nov. 5, 2013 5:00 AM ET).....................................14

Olga Pierce, et al., How Dark Money

Helped Republicans Hold the House

and Hurt Voters................................................ 13, 15

President Ronald Reagan, Election Eve

Address: A Vision for America (Nov.

3, 1980) .....................................................................21

The Redistricting Majority Project, 2012

REDMAP Summary Report (Jan. 4, 2013) ..........14

Republican State Leadership Comm.,

The Redistricting Majority Project........................13

Karl Rove, The GOP Targets State Legislatures,

Wall St. J. (Mar. 4, 2010 5:01 AM ET) .................14

Peter H. Shuck, The Thickest Thicket: Partisan

Gerrymandering and Judicial Regulation of

Politics, 87 Colum. L. Rev. 1325 (1987) ................18

Jeffrey Toobin, Drawing the Line, The

New Yorker (Mar. 6, 2006) ....................................18

Views on Power and Influence in Washington,

Assoc. Press-NORC Ctr. for Pub. Affairs

Research (2017) ................................................ 19, 20

Sheldon Whitehouse, Captured: The

Corporate Infiltration of American

Democracy (2017) ......................................................3

Why Democrats are Taking Aim at Gerrymandering,

The Economist (July 12, 2017) ..............................10

Governor John Winthrop, A Model of

Christian Charity (1630)........................................21

vii

INTEREST OF AMICUS CURIAE

Amicus is U.S. Senator Sheldon Whitehouse of

Rhode Island. 1 In Gill v. Whitford, 138 S. Ct. 1916

(2018) (No. 16-1161), amicus submitted a brief with

the late Senator John McCain of Arizona to provide a

bipartisan view of how partisan gerrymandering

threatens our democracy. See Br. of Senators John

McCain and Sheldon Whitehouse, 2017 WL 4311105

(filed Sept. 5, 2017). Because the concerns expressed

in that brief are just as relevant today, amicus presents the same arguments in this brief.

As a national political leader, amicus has a strong

interest in the proper functioning of our democracy,

and is a witness to the symptoms and ill effects of its

distress. As an active, democratically elected legislator, amicus is deeply concerned about the damage excessive partisan redistricting inflicts on the American

democratic process.

Amicus sees firsthand the concerns of constituents who increasingly view politics as a game run by

powerful special interests that have changed the rules

to win the game. The age-old problem of an “influencer class” is worsening, and the public sees this

class garnering disproportionate rewards at the public’s expense. Gerrymandering is a tool of the influencer class in that effort.

Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

other than amicus or his counsel made any monetary contributions intended to fund the preparation or submission of this brief.

The parties have filed letters with the Clerk consenting to the

filing of all amicus briefs in this case.

Americans do not like gerrymandering. They see

its mischief, and absent a legal remedy, their sense of

powerlessness and discouragement has increased,

deepening the crisis of confidence in our democracy.

Amicus shares this perspective. From this vantage

point, amicus sees wasted votes and silenced voices.

Amicus sees hidden power. And amicus sees a correctable problem.

Amicus submits this report from the political front

lines in the hope that it will aid the Court by providing

pragmatic, real-world input on the ways in which partisan gerrymandering undermines our democracy.

These concerns should be central to the Court’s review

of whether the district courts correctly held that the

North Carolina and Maryland redistricting schemes

constitute unconstitutional partisan gerrymanders.

On a personal note, amicus mourns the loss of his

friend and colleague and submits this brief in his

honor.

INTRODUCTION AND

SUMMARY OF ARGUMENT

These cases implicate the effective functioning of

American representative democracy. With roots tracing to Patrick Henry and Massachusetts Governor Elbridge Gerry, politically motivated redistricting has

long been a part of American politics. But what began

as a tactic to protect individual incumbencies and to

undercut adversaries has morphed into something

much different today. Partisan gerrymandering is

now accomplished by using sophisticated technology—including mapping software, census data, and

voting algorithms—to redraw a state’s district lines to

maximize partisan advantage across an entire state. 2

This new breed of “bulk” partisan gerrymandering

distorts statewide votes, systematically diluting the

effect of votes based on political affiliation and leading

to the election of congressional and state legislative

delegations that do not represent the will of the voters. This practice violates “the core principle of republican government, namely, that the voters should

choose their representatives, not the other way

around.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015) (internal quotation marks omitted). And importantly—as

demonstrated by the redistricting schemes at issue in

the cases now before the Court—extreme partisan

gerrymandering is a bipartisan problem, undertaken

by Republicans and Democrats alike in an effort to entrench political power at the expense of the American

voter.

I. A. The rise of extreme partisan gerrymandering

over the past decade can be traced directly to this

Court’s decision in Vieth v. Jubelirer, 541 U.S. 267

(2004). Although partisan gerrymandering existed

before Vieth, the threat of judicial review provided a

strong deterrent that kept states from adopting extremely gerrymandered districts. Vieth’s refusal to

treat partisan gerrymandering claims as justiciable

effectively removed this threat. State legislatures—

and political operatives seeking to gain and entrench

See Sheldon Whitehouse, Captured: The Corporate Infiltration

of American Democracy 83–86 (2017); Emily Bazelon, The New

Front in the Gerrymandering Wars: Democracy vs. Math, N.Y.

Times Mag. (Aug. 29, 2017).

political power—have viewed this decision as an invitation to redraw districts to push the limit of partisan

advantage. As the American Bar Association observed, “[t]he Court’s recent decisions appear to give

legislators leeway to [preserve] partisan advantage as

zealously as they like when drawing district lines.” 3

B. The increase in partisan gerrymandering in recent years has been bolstered by the growing presence

of “dark money” in the American political system.4

Special interest groups, fueled by hidden funders with

deep pockets and skin in the political game, are now

focused on influencing redistricting. The payoff for

these groups is obvious: By shaping the decennial redistricting process, special interest groups can affect

the outcome of every congressional race in a state for

the next decade. The role of dark money in this process is a bipartisan concern, as both Republicans and

Democrats now rely on this funding.

C. This Court has already acknowledged “the incompatibility of severe partisan gerrymanders with

democratic principles.” Vieth, 541 U.S. at 292. Severe

partisan gerrymandering undermines our democracy,

which is based on fair and open elections that accurately reflect the will of the people and count every

vote equally. When the voters of a state vote one way,

the resulting congressional delegation is more than 21 the opposite way, and the advantaged party intentionally produced that undemocratic result, it should

J. Gerald Hebert, Paul M. Smith, Martina E. Vandenberg, &

Michael B. DeSanctis, A.B.A., The Realist’s Guide to Redistricting: Avoiding the Legal Pitfalls 19 (2d ed. 2010).

The term “dark money” refers to money contributed to nonprofit

organizations and used for political purposes without disclosure

of the donor’s identity.

be obvious that “one person, one vote” has been violated. This partisan gerrymandering leads voters to

perceive, rightly, that their votes do not matter. Indeed, we have seen firsthand the growing concerns of

constituents who view politics as a game orchestrated

by powerful special interests whose victories come at

the expense of the American voter.

II. The Court should affirm the district court decisions. The district courts relied on equal protection

and First Amendment tests that provide a workable

framework for distinguishing between district maps

drawn based on legitimate political considerations

and those constituting unlawful partisan gerrymandering. The tests are more than sufficient to find an

unconstitutional gerrymander on the facts of these

cases. Beyond remedying the constitutional violations

present in these cases, affirming the district court decisions will send a clear message that partisan gerrymandering will not be tolerated.

ARGUMENT

Partisan Gerrymandering Has Become A

Tool For Powerful Interests To Distort

The Democratic Process.

Democracy is not abstract or academic. It is a battleground on which competing interests exert all the

pressure they can muster. This battleground often

pits special interest groups against a general population that wants only to be treated fairly. 5

This is a long-observed conflict, reflected in the pages of history

from Niccolo Machiavelli’s writings to President Jackson’s bank

veto message. See, e.g., Niccolo Machiavelli, The Prince, ch. IX

Special interest groups have long influenced the

outcome of elections. But this Court’s decision in Vieth made redistricting a particularly attractive tool for

these groups. No longer concerned about the prospect

of judicial review, state legislatures now push gerrymandering to its limits, and special interests, supported by dark money, help them do so. The result

has greatly undermined the public’s faith in our democracy.

A. Vieth Opened The Door To Extreme Partisan Gerrymandering.

Justice Kennedy, in his concurring opinion in Vieth, predicted that “if courts refuse to entertain any

claims of partisan gerrymandering, the temptation to

use partisan favoritism in districting in an unconstitutional manner will grow.” 541 U.S. at 312. That

prediction has come true. The frequency and egregiousness of partisan gerrymandering has intensified

in the decade since Vieth, and absent this Court’s intervention, the problem is only likely to worsen. Without the threat of judicial review, political parties have

every incentive to engage in extreme partisan gerrymandering.

(1513) (speaking of “two distinct parties” in a governed society:

one, “the nobles [who] wish to rule and oppress the people,” and

two, “the people [who] do not wish to be ruled nor oppressed by

the nobles”); Andrew Jackson, Veto Message Regarding the Bank

of the United States (July 10, 1832), available at http://avalon.law.yale.edu/19th_century/ajveto01.asp (distinguishing between “the rich and powerful [who] too often bend the acts of

government to their selfish purposes” and the “humble members

of society—the farmers, mechanics, and laborers—who have neither the time nor the means of securing like favors to themselves”).

Vieth sent a clear signal that the Court was no

longer inclined to intervene in partisan gerrymandering cases. 6 Vieth’s impact has been felt since 2010—

the first round of redistricting after the decision—as

state governments sought to redraw electoral maps

for partisan advantage more aggressively than ever

before. 7 Observers have recognized that “[t]he world

changed with the 2010 redistricting. States were no

longer constrained by the threat of judicial challenge

of partisan gerrymanders, and where one party completely controlled the redistricting process, it often

took full advantage.” 8

The North Carolina map currently before the

Court illustrates how partisan gerrymandering

evolved after Vieth. In 2010, Republicans gained control of North Carolina’s General Assembly and, with

it, exclusive control over the redistricting process. See

Rucho J.S. App. at 10. The next year, they adopted a

new map that allowed Republicans to win a supermajority of the state’s congressional seats (9 of 13) in the

2012 election despite receiving a minority of the

statewide vote (49%). Id. at 13. In 2014, Republicans

gained an additional seat, meaning they won 10 of 13

seats with only 54% of the statewide vote. Id. at 1314.

Anthony J. McGann, et al., Gerrymandering in America: The

House of Representatives, the Supreme Court, and the Future of

Popular Sovereignty 5 (2016) (“[A]fter Vieth v. Jubelirer (2004),

state legislatures were willing to district for partisan advantage

far more than they had previously.”).

Id. at 3.

Id. at 17.

North Carolina was forced to adopt a new map for

the 2016 elections after courts invalidated the previous map as a racial gerrymander. Id. at 14, 24. The

General Assembly created the new map using “Partisan Advantage” as a criterion. Id. at 20. One of the

Republican leaders explained that “the goal” of this

criterion was “to elect 10 Republicans and 3 Democrats.” Id. at 23. Republicans succeeded. In the 2016

elections, they won 10 of 13 congressional seats (77%)

despite receiving only 53% of the statewide vote. Id.

at 26.

North Carolina was not alone in seizing the opportunity presented in Vieth for partisan gerrymandering

without judicial oversight. Wisconsin also implemented a gerrymandered map for General Assembly

elections designed to ensure that “Republicans would

maintain a majority under any likely voting scenario;

indeed, they would maintain a 54 seat majority while

garnering only 48% of the statewide vote. The Democrats, by contrast, would need 54% of the statewide

vote to capture a majority.” Whitford v. Gill, 218 F.

Supp. 3d 837, 852 (W.D. Wis. 2016) (emphasis added),

vacated and remanded, 138 S. Ct. 1916 (2018). The

Wisconsin plan produced precisely this lopsided result

in the 2012 election that followed, in which Republicans won 60 of 99 General Assembly seats despite receiving only 48.6% of the statewide vote. Id. at 853.

Pennsylvania provides another example of extreme gerrymandering in the wake of Vieth. Following the 1990 Census, Pennsylvania’s congressional

districts were relatively compact with few oddly

shaped districts, and had little or no partisan bias. 9

McGann, supra note 6, at 9.

After the 2000 Census, the redistricting plan had a

few more oddly shaped districts and indications of

partisan bias, but the plan was approved by the district court and affirmed by the Court in Vieth. 10

After the 2010 Census, Pennsylvania’s districting

plan changed dramatically, pushing partisan gerrymandering to its limits. The previously compact districts were largely replaced by districts that are

“either elongated or have tendrils that cut into the

surrounding districts.” 11 From the Republicans’ perspective, these changes worked: In the 2012 House

elections, Democrats received more votes than Republicans, but the state sent thirteen Republicans and

only five Democrats to Congress. 12 This scheme ultimately drew the attention of the Pennsylvania Supreme Court, which in 2018 redrew Pennsylvania’s

districts after finding that the Republican redistricting plan violated the state’s constitution. 13

Scholars have concluded that this Court’s decision

in Vieth was the primary reason for Pennsylvania’s efforts to further gerrymander its congressional districts. 14 When the post-2000 districts were drawn,

Id. at 11.

Id. at 13.

Nathan S. Catanese, Note, Gerrymandered Gridlock: Addressing the Hazardous Impact of Partisan Redistricting, 28 Notre

Dame J. L. Ethics & Pub. Pol’y 323, 329 (2014).

League of Women Voters of Pa. v. Commonwealth of Pa., 181

A.3d 1083 (Pa. 2018).

McGann, supra note 6, at 3. The increase in partisan gerrymandering from the 2000 Census to the 2010 Census is clear

even if one controls for a variety of other factors, including urban

concentration, changes in technology, and the requirements of

the Voting Rights Act. See id. at 4–5, 12.

gerrymandering for political gain could still be meaningfully challenged in the courts, which explains “why

the level of partisan gerrymandering was quite modest in the post-2000 districts compared to the post2010 ones, even though the Republicans controlled the

governorship and state legislature in both cases.”15

The congressional districts adopted after Vieth, in contrast, “show the full potential of partisan gerrymandering when there is no threat of judicial action.” 16

The combined effect of partisan gerrymanders in

2012 resulted in Republicans gaining a 33-seat advantage in the House, despite receiving more than one

million fewer votes than Democrats. 17 Most of this advantage can be attributed to Republicans successfully

tilting the electoral maps in key swing states. 18

Republicans have certainly benefited from postVieth bulk gerrymandering, but they are hardly alone

in skewing district lines for political gain. As one commentator noted, partisan gerrymandering is “a decennial sin of every majority party.” 19 Where Democrats

Id. at 12.

Id. at 13 (“In the previous round, the Pennsylvania state government had to consider the possibility that the courts would

strike down a blatantly gerrymandered districting plan. After

Vieth v. Jubelirer (2004), this was no longer the case.”).

Stephen Ohlemacher, GOP Gerrymandering Creates Uphill

Fight for Dems in the House, PBS NewsHour (Mar. 31, 2014),

http://www.pbs.org/newshour/rundown/gop-gerrymanderingcreates-uphill-fight-dems-house/.

Id.

Why Democrats are Taking Aim at Gerrymandering, The Economist (July 12, 2017), https://www.economist.com/blogs/economist-explains/2017/07/economist-explains-6.

have been in control, they have drawn gerrymandered

maps just like their Republican counterparts.

The Maryland plan before the Court illustrates as

much. Following the 2010 Census, Democrats sought

to redraw district lines to improve upon the 6-2 advantage they already enjoyed in the state’s congressional delegation.

See Lamone J.S. App. 14a.

Democrats took aim at Maryland’s Sixth District,

which had elected a Republican representative for the

previous two decades. Id. at 3a, 7a. Working with

hired data analysts using sophisticated mapping software, Democrats successfully implemented the Governor’s goal of creating a 7-1 map. See id. at 12a, 16a,

18a, 22a. The plan “effect[ed] a swing of about 90,000

voters,” which “br[ought] about the single greatest alteration of voter makeup in any district in the Nation

following the 2010 census.” Id. at 2a. After the reshuffling, a Democratic challenger unseated the district’s ten-term Republican incumbent, confirming

that “[t]he result of the wholesale recomposition of the

Sixth District was precisely as intended and predicted.” Id. at 24a; see also id. at 11a.

Democrats also led successful partisan redistricting efforts in Illinois. In 2010, Republicans held 11 of

Illinois’ 19 House seats. After Democrats redrew the

district lines in 2011, they took 12 of Illinois’ 18 seats

in the 2012 election. Although challenged by Republicans, a federal district court, relying heavily on Vieth, upheld the gerrymander despite finding that it

was “a blatant political move to increase the number

of Democratic congressional seats.” Comm. for a Fair

and Balanced Map v. Ill. State Bd. of Elections, 835 F.

Supp. 2d 563, 567 (N.D. Ill. 2011). 20

In short, partisan gerrymandering has worsened

significantly since Vieth removed the threat of judicial

review, and bulk gerrymandering has been the vehicle. With the 2020 Census quickly approaching, the

Court should curb this pernicious practice.

B. Dark Money Fuels Partisan Gerrymandering On Both Sides Of The Aisle.

As state governments become more willing to engage in partisan gerrymandering post-Vieth, a predictable result has occurred: Special interest groups,

funded by dark money, are playing an increasingly active role in redistricting.

Drawing district lines that maximize partisan advantage is a complicated task. Legislators therefore

turn to outside consultants and organizations, which

offer detailed guidance on how to redraw district

maps. These groups rely on sophisticated mapmaking

software, census data, and partisan voting algorithms

to determine how best to maximize partisan gain.21

This expertise is expensive, but special interest

groups are willing to foot the bill because they recognize the potential return on their investment. Spending money to help a House candidate in an election

See also Catanese, supra note 12, at 331 (discussing Illinois as

an example of a Democratic-controlled gerrymander).

21 See, e.g., Lamone J.S. App. at 17a–18a; Bazelon, supra note 2;

Jane Mayer, Dark Money: The Hidden History of the Billionaires

Behind the Rise of the Radical Right 411 (2016) (“The advent of

computers had turned redistricting into an expensive, cynical,

and highly precise science.”).

can change the occupant of that seat for the next two

years. But spending to support redistricting can

change every House race in the state for the next decade.

Financial support from groups accepting dark

money has been crucial to recent gerrymandering efforts, and redistricting groups in most states can take

unlimited amounts of money without disclosing the

source. In early 2010, the Republican State Leadership Committee created the Redistricting Majority

Project (“REDMAP”) with the goal of redrawing electoral maps to benefit Republican candidates. 22 In

2010, REDMAP raised more than $30 million—much

of it dark money—to elect majorities in state legislatures in battleground states including Ohio, Michigan, North Carolina, Pennsylvania, and Wisconsin.23

After gaining control of state legislatures, REDMAP

then expanded its efforts to influence the redistricting

of those states’ congressional seats. 24

The Republicans’ redistricting efforts were largely

supported by “opaque nonprofits funded by dark

money, supposedly nonpartisan campaign outfits, and

millions in corporate donations to achieve RepublicanSee Republican State Leadership Comm., The Redistricting

Majority Project, http://www.redistrictingmajorityproject.com/

(last visited Mar. 6, 2019) (“Republicans have an opportunity to

create 20–25 new Republican Congressional Districts through

the redistricting process over the next five election cycles, solidifying a Republican House Majority.”); Olga Pierce, et al., How

Dark Money Helped Republicans Hold the House and Hurt Voters, ProPublica (Dec. 21, 2012 3:36 PM ET), https://www.propublica.org/article/how-dark-money-helped-republicans-hold-thehouse-and-hurt-voters.

Pierce, et al., supra note 22.

Id.

friendly maps throughout the country.” 25 Among the

organizations funding REDMAP were groups with

such seemingly neutral names as American Justice

Partnership, Fair and Legal Redistricting for North

Carolina, and Michigan Redistricting Resource Institute. 26 The neutral names disguise these organizations’ underlying agendas. 27

The strategy behind this effort was clear, and the

political intent unmistakable. In 2010, one of REDMAP’s early boosters wrote in the Wall Street Journal

that Republicans were targeting state legislatures because “[h]e who controls redistricting can control Congress.” 28 REDMAP’s own 2012 Summary Report

highlighted how their “strategy of targeting state legislative races in 2010 led to a Republican U.S. House

Majority in 2013.” 29 REDMAP explained: “Drawing

new district lines in states with the most redistricting

Id. (“Two tobacco giants, Altria and Reynolds, each pitched in

more than $1 million to the main Republican redistricting group,

as did [Karl] Rove's super PAC, American Crossroads; Walmart

and the pharmaceutical industry also contributed. Other donors,

who gave to the nonprofits Republicans created, may never have

to be disclosed.”).

Id.

27 See, e.g., Peter Overby, NPR News Investigations, From Social

Welfare Groups, a River of Political Influence (Nov. 5, 2013 5:00

AM ET), http://www.npr.org/2013/11/05/242354030/from-socialwelfare-groups-a-river-of-political-influence (describing American Justice Partnership as an organization dedicated to legal reform that has “target[ed] liberal judges for defeat”).

Karl Rove, The GOP Targets State Legislatures, Wall St. J.

(Mar. 4, 2010 5:01 AM ET), https://www.wsj.com/articles/SB10001424052748703862704575099670689398044.

The Redistricting Majority Project, 2012 REDMAP Summary

Report (Jan. 4, 2013) (capitalization altered), http://www.redistrictingmajorityproject.com/.

activity presented the opportunity to solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of

Representatives for the next decade.” 30

The Democratic Party also has supported its redistricting efforts by accepting “secretive redistricting

funding.” 31 For example, as noted above, Maryland

Democrats gerrymandered congressional districts behind closed doors to preserve their incumbencies

while taking aim at the state’s two remaining Republican seats. As former governor Martin O’Malley explained in a deposition, “part of our intent was to

create a map that was more favorable for Democrats

over the next ten years.” 32 To that end, Democrats

hired outside consultants to redraw the district lines.

Those consultants later testified that their job “was to

see if there was a way to get another Democratic district in the state.” 33 They succeeded, and Maryland’s

two Republican seats shrunk to one.

Democrats too have relied on nonprofit organizations, funded by dark money, for support in redistricting. Like the Republican groups, these groups have

nonpartisan-sounding names, such as Democracy Alliance, America Votes, and Patriot Majority USA, that

belie their political agendas. 34 Patriot Majority USA,

Id.

Pierce, et al., supra note 22.

Lamone J.S. App. at 13a.

Id. at 16a.

See, e.g., About, America Votes (last accessed Mar. 6, 2019),

https://americavotes.org/about/ (describing America Votes as

“the coordination hub of the progressive community,” with “an

eye on redistricting”); Richard Berman, The Democrats’ Dark

a 501(c)(4) social welfare group not required to publicly disclose its donors, reportedly raised $30 million

in 2014 and “was a major player in the Democrats’

failed bid to retain control of the U.S. Senate” in

2014. 35 Unions have reportedly donated to Patriot

Majority USA, 36 as well as to “an array of ‘dark money’

liberal advocacy groups including the 501(c)(4) arms

of the Center for American Progress, National Employment Law Project, and Partnership for Working

Families—which aren’t required to report who funds

them.” 37

As troubling as these examples are, amicus expects that the influence of special interests groups and

dark money in redistricting efforts will increase unless this Court steps in. One recent study found that

38 times more dark money was spent during the 2014

elections than in 2006. 38 And political groups are

Money Hypocrisy, The Hill (May 5, 2016 9:00 AM ET),

http://thehill.com/blogs/congress-blog/politics/278881-the-democrats-dark-money-hypocrisy; Matea Gold, Wealthy Donors on

Left Launch New Plan to Wrest Back Control in the States, Wash.

Post (Apr. 12, 2015), https://www.washingtonpost.com/politics/wealthy-donors-on-left-launch-new-plan-to-wrest-back-control-in-the-states/2015/04/12/ccd2f5ee-dfd3-11e4-a1b82ed88bc190d2_story.html?utm_term=.94e5ec28352c (describing

Democracy Alliance as “[a] cadre of wealthy liberal donors”).

Michael Beckel, Secret Donors Fuel Democratic Political Powerhouse, Ctr. for Pub. Integrity (Nov. 18, 2015), https://www.publicintegrity.org/2015/11/18/18875/secret-donors-fuel-democraticpolitical-powerhouse.

Id.

Berman, supra note 34.

Chisun Lee, et al., Brennan Ctr. for Justice, Secret Spending

in the States 3 (June 26, 2016), https://www.brennancenter.org/publication/secret-spending-states.

gearing up for the next round of redistricting. Democrats are already planning for a 2020 redistricting

campaign, including through groups funded by “dark

money,” 39 and Republicans will surely do the same.

This is just one of many ways in which dark

money plagues United States elections, but it is a significant one.

C. Partisan Gerrymandering Produces Uncompetitive And Unrepresentative Districts That Have A Corrosive Effect On

Our Democracy.

“Something is rotten in the state of Denmark,”

wrote Shakespeare to convey the notion of disease in

the body politic. Here too, there is a powerful sense

among Americans that something has gone awry. 40

The increase in partisan gerrymandering following Vieth, fueled by dark money contributions and advanced technology, distorts our representative

democracy and pollutes Americans’ faith in their political institutions. This Court has long recognized

Id.

These concerns are well-founded, with recent studies illustrating the high rewards (a return of nearly 1000-1 for lobbying expenditures) and high stakes (over $700 billion per year for one

subsidy) for America’s influencer class. See Bill Allison & Sarah

Harkins, Sunlight Found., Fixed Fortunes: Biggest Corporate Political Interests Spend Billions, Get Trillions (Nov. 17, 2014),

https://sunlightfoundation.com/2014/11/17/fixed-fortunes-biggest-corporate-political-interests-spend-billions-get-trillions/;

Laurence Cockroft & Anne-Christine Wegener, Unmasked 14

(2017) (showing a 750-1 ratio); see also http://priceofoil.org/fossilfuel-subsidies/.

that “[t]he true principle of a republic is[] that the people should choose whom they please to govern them.”

Powell v. McCormack, 395 U.S. 486, 540–41 (1969)

(quoting Alexander Hamilton in 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). The current

practice of partisan gerrymandering undermines that

principle, because it “enables politicians to entrench

themselves in power against the people’s will.” Gill,

138 S. Ct. at 1935 (Kagan, J., concurring); see also id.

at 1940. As one commentator recently observed, “[i]t

used to be that the idea was, once every two years voters elected their representatives, and now, instead,

it’s every ten years the representatives choose their

constituents.” 41

As Republicans and Democrats battle each other

to control redistricting, the real losers are the American people. Sending delegations to Congress that do

not conform to the results of elections leads to disinterested and justifiably disillusioned voters. Ordinary

voters may not identify the dark money forces that

have separated a state delegation’s makeup from that

state’s election results, but they surely see that some

dark force is intermediating to create that anomalous

outcome. Realizing that their votes have been gerrymandered into near-meaninglessness, many Americans are checking out of the process entirely, as

See Jeffrey Toobin, Drawing the Line, The New Yorker, at 35

(Mar. 6, 2006) (quoting Stanford Law School Professor Pamela

Karlan); see also Peter H. Shuck, The Thickest Thicket: Partisan

Gerrymandering and Judicial Regulation of Politics, 87 Colum.

L. Rev. 1325, 1329 (1987) (gerrymandering raises “profound issues concerning the legitimacy of our representational structures”).

reflected by the lowest voter turnout in 2014 in any

election since 1942. 42

When gerrymandering is used to establish safe

districts, the proliferation of those safe seats leads to

a more polarized and dysfunctional political climate.

In safe districts, an incumbent’s biggest threat is often

a primary challenge from a more extreme member of

his or her own party. This threat makes legislators

reluctant to work across the aisle and support bipartisan legislation. Gerrymandering thus worsens “the

hyper-partisanship that paralyzes our politics and

governance.” 43

Public trust in our democracy is further weakened

by the lack of transparency in how redistricting is

funded. The influx of dark money compounds this

concern, replacing the will of the people with the will

of anonymous special interests and wealthy donors.

Dark money also increases the risk that politicians become beholden to the special interest groups funding

redistricting efforts, rather than to their constituents.

Recent surveys have shown that a significant majority

of Americans believe “it doesn’t matter if they vote,”

because politics and elections are controlled by

wealthy interests. 44 This sentiment is bipartisan:

Brian Klaas, The Despot’s Accomplice: How the West is Aiding

and Abetting the Decline of Democracy 184 (2017).

Fred Dews, A Primer on Gerrymandering and Political Polarization, Brookings (July 6, 2017), https://www.brookings.edu/blog/brookings-now/2017/07/06/a-primer-ongerrymandering-and-political-polarization/.

See, e.g., Betsy Cooper, et al., PRRI, The Divide Over America’s

Future: 1950 or 2050? Findings From the 2016 American Values

Survey (Oct. 25, 2016), https://www.prri.org/research/poll-1950s2050-divided-nations-direction-post-election/; Views on Power

and Influence in Washington, Assoc. Press-NORC Ctr. for Pub.

“Democrats and Republicans generally agree that people like them, working people, the poor, and small

businesses don’t have enough power in Washington,

and that political lobbyists, Wall Street, large businesses, and the wealthy have too much influence.”45

And not without reason: studies have found that “the

preferences of the average American appear to have

only a minuscule, near-zero, statistically non-significant impact upon public policy.” 46

Americans are particularly troubled by how special interest groups are helping to gerrymander state

and federal legislative districts. Across party lines,

64% of Americans believe that redistricting is a tactic

to take power away from voters. 47 71% of Americans

believe that “those who stand to benefit from redrawing congressional districts should not have a say in

how they are redrawn.” 48 One Wisconsin senator who

voted for the redistricting plan at issue in Gill expressed remorse for his vote, explaining, “[w]hen you

talk to people about our government, the thing they

Affairs

Research

(2017),

http://www.apnorc.org/projects/Pages/Power-and-Influence-in-Washington.aspx [hereinafter AP-NORC Poll].

AP-NORC Poll, supra note 45.

Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12

Perspectives

Politics

564,

575

(Sept.

2014),

https://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf.

Americans Across Party Lines Oppose Common Gerrymandering Practices, The Harris Poll (Nov. 7, 2013), http://www.theharrispoll.com/politics/Americans_Across_Party_Lines_Oppose_Co

mmon_Gerrymandering_Practices.html.

Id.

tell you is it’s rigged.” 49 Indeed, the process of redistricting merits little faith because drawing district

lines is “among the most easily manipulated and least

transparent systems in democratic governance.” 50

Finally, Americans are not the only ones who have

observed how partisan gerrymandering has undermined our political system. America’s democracy has

long stood as a model to the world, a “city [on] a hill.”51

Partisan gerrymandering now threatens that role. A

scholar of comparative politics recently remarked that

“the American model is not the only viable one out

there, and . . . other nations may not be insane to look

at it with some sense of distaste.” 52 Rooted in part in

our use of partisan gerrymandering, this view creates

“knock-on effects that damage the core of democracy.” 53

That study of different democratic countries concluded that America’s extreme gerrymandering

threatens the very fabric of our democracy and

“mak[es] a mockery of the one person, one vote principle that is the granite ridge to which democracy

should be anchored.” 54 Amicus agrees.

Bazelon, supra note 2.

Dews, supra note 43.

See Governor John Winthrop, A Model of Christian Charity, at

12 (1630); President Ronald Reagan, Election Eve Address: A Vision for America (Nov. 3, 1980), https://www.reaganlibrary.gov/11-3-80.

Klaas, supra note 42, at 188.

Id. at 183.

Id. at 185 (internal quotation marks omitted).

II.

The Court Should Curb The Rise Of Partisan Gerrymandering By Affirming The

District Court Decisions.

When it comes to partisan gerrymandering, this

Court can no longer remain on the sidelines. In Reynolds v. Sims, the Court explained that “[a]s long as

ours is a representative form of 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.”

377 U.S. 533, 562 (1964). The Court should reaffirm

this principle by holding that partisan gerrymandering claims are justiciable and that the North Carolina

and Maryland plans violate the Constitution.

The Rucho court held that the North Carolina

plan violated the Equal Protection Clause by applying

a test similar to the test applied in Gill. That test—

which requires evidence of discriminatory intent, a

large and durable discriminatory effect, and a lack of

a legitimate justification—provides a clear roadmap

for lower courts and is grounded in this Court’s precedents. The test addresses this Court’s prior concerns

by articulating a clear standard that avoids sweeping

in legitimate political conduct. The test is manageable, and, importantly, will impose a needed threat of

judicial accountability to constrain future partisan

gerrymandering efforts.

The first element of the equal protection test—discriminatory intent—provides a workable standard

that addresses the concerns expressed in Vieth. For

this element, the district court analyzed whether the

“predominant purpose in drawing the lines of a particular district was to ‘subordinate adherents of one

political party and entrench a rival party in power’”

Rucho J.S. App. 145a–146a (quoting Ariz. State Leg.,

135 S. Ct. at 2658). Unlike the proposed intent requirements addressed in Vieth, this test captures only

those political classifications “applied in an invidious

manner or in a way unrelated to any legitimate legislative objective.” 541 U.S. at 307 (Kennedy, J., concurring). The test is also a workable one, allowing

courts to consider different forms of intent evidence

including admissions, rejection of more neutral plans

for no apparent reason, secrecy and lack of transparency surrounding the redistricting process, and unwillingness to include minority party voices. When

politicians admit that their efforts to redraw district

lines were intended to create undemocratic outcomes,

courts should hold them accountable. 55

The second element of the equal protection test—

discriminatory effect—also addresses the concerns articulated in Vieth. The district court considered

whether “the lines of a particular district have the effect of discriminating against—or subordinating—

A state ordinarily should find safe harbor against any allegation that it acted with discriminatory intent when it entrusts redistricting to an independent redistricting commission. See, e.g.,

Ariz. State Legislature, 135 S. Ct. at 2652. As this Court recognized implicitly in Gaffney v. Cummings, 412 U.S. 735, 752

(1973), safe harbors could also include districts designed by “a

three-[person] bipartisan Board” rather than a single-party-controlled state legislature, or other processes that incorporate minority voices and promote public scrutiny and transparency

through openness and publication of proposed and revised maps.

When states take steps like these to protect redistricting from

partisan influence, they ought rightly to insulate themselves

from cries of foul play.

voters who support candidates of a disfavored party,”

and “if the district dilutes such voters’ votes by virtue

of cracking or packing.” Rucho J.S. App. 151a. Unlike

in prior cases, plaintiffs here focus on dilution of their

votes due to their political affiliations, rather than on

any claim to proportional representation. Cf. Vieth,

541 U.S. at 308 (Kennedy, J., concurring) (rejecting

fairness principle based on a proportionality theory).

The Court has recognized that “the right of qualified voters, regardless of their political persuasion, to

cast their votes effectively . . . rank[s] among our most

precious freedoms.” Anderson v. Celebrezze, 460 U.S.

780, 787 (1983). Vote dilution is a firmly rooted constitutional injury and provides a sound basis for the

discriminatory effect test. And as Appellees demonstrate, experts can now readily measure the dilutive

effects of partisan gerrymandering through election

results, partisan bias, the “efficiency gap,” and sensitivity testing. These are exactly the sort of advancements “that make more evident the precise nature of

the burdens gerrymanders impose.” Vieth, 541 U.S.

at 312–13. Wild mismatches between the popular

vote and the balance of the delegation are an obvious

signal.

The final factor of the equal protection test—lack

of a legitimate justification—also speaks to Vieth’s

concerns. This part of the test ensures that courts can

distinguish between district maps drawn to achieve

legitimate objectives and those based on impermissible partisan considerations. For example, this element will defeat claims where a non-partisan

explanation, such as geographical distribution of voters, accounts for the map’s alleged discriminatory effect.

See, e.g., Rucho J.S. App. 152a–153a

(“examin[ing] whether districts’ discriminatory partisan effects are justified by a legitimate state districting interest or neutral explanation”). This element

appropriately guarantees that legitimate legislative

decisions will not be lumped in with naked retaliation

based on party affiliation.

The district courts in both cases also held that the

districting plans violated the First Amendment. See

Lamone J.S. App. 4a; Rucho J.S. App. 299a–300a. The

First Amendment test applied in both cases also provides a workable standard for analyzing partisan gerrymandering claims.

Indeed, the First Amendment test largely mirrors

the equal protection analysis by focusing on intent, injury, and causation. For the intent element, the First

Amendment test asks whether “those responsible for

[a redistricting] map redrew the lines of [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.” Lamone J.S. App. 43a (first alteration in

original) (internal quotation marks omitted). For a

claim alleging injury based on vote dilution, the First

Amendment test requires that “the challenged map

diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse

effect.” Id. (internal quotation marks omitted). And

for causation, the First Amendment test examines

whether “the mapmakers’ intent to burden a particular group of voters by reason of their views was a butfor cause of the adverse impact.” Id. (internal quotation marks omitted); see also Rucho J.S. App. 286a.

Like the equal protection test, the similar First

Amendment test also addresses the concerns expressed in Vieth.

The Court should affirm the equal protection and

First Amendment tests applied in these cases. But

even if the Court concludes that these tests are inadequate, the Court should, at a minimum, hold that

partisan gerrymandering claims are justiciable. As

discussed above, the Vieth plurality’s retreat from Davis v. Bandemer, 478 U.S. 109 (1986), has resulted in

more frequent and extreme gerrymandering at the expense of our democracy. See supra Part I.

Moreover, the plurality’s reasons for deeming partisan gerrymandering claims non-justiciable are unpersuasive. For example, the plurality relied in part

on Congress’s power to make or alter redistricting

lines. See Vieth, 541 U.S. at 275–77. But the Constitution leaves room for both Congress and the courts to

remedy the problem of partisan gerrymandering.

Nothing in Article I, Section 4 provides Congress with

exclusive authority to modify congressional districts.

And the question for courts is not what districts

should look like, but whether partisan forces have manipulated the process to dilute votes based on political

affiliation. Cf. Rutan v. Republican Party of Ill., 497

U.S. 62, 64 (1990) (“To the victor belong only those

spoils that may be constitutionally obtained.” (emphasis added)).

Even if the democratic process could prevent excess partisan gerrymandering in some cases, the

Court must still step in where, as here, the democratic

process has been used to violate citizens’ fundamental

rights. See League of United Latin Am. Citizens v.

Perry (LULAC), 548 U.S. 399, 415 (2006) (Kennedy,

J.) (“[O]ur precedents recognize an important role for

the courts when a districting plan violates the Constitution.”); Obergefell v. Hodges, 135 S. Ct. 2584, 2605

(2015) (“[T]he Constitution contemplates that democracy is the appropriate process for change, so long as

that process does not abridge fundamental rights.”).

The Vieth plurality incorrectly suggested that

Congress alone can solve the problem of partisan gerrymandering. The facts on the ground since Vieth

demonstrate that the political process alone cannot

provide an adequate solution. Judicial review is a necessary ingredient to restoring our democracy. This

Court should hold that partisan gerrymandering

claims are justiciable and that the North Carolina and

Maryland redistricting plans are unconstitutional.

CONCLUSION

For the foregoing reasons, and those in Appellees’

briefs, the Court should affirm the district court decisions.

Respectfully submitted,

Kathryn Cahoy

COV INGTON & BURLING LLP

3000 El Camino Real

5 Palo Alto Square

Palo Alto, CA 94306

(650) 632-4700

March 2019

Mark W. Mosier

Counsel of Record

Ryan Mowery

Kathleen Choi

COV INGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

MMOSIER@COV .COM

(202) 662-6000

Counsel for Amicus Curiae

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