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

Nos. 18-422 and 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 FOR THE AMERICAN JEWISH

COMMITTEE AS AMICUS CURIAE

SUPPORTING APPELLEES

Marc D. Stern

A merican Jewish Committee

165 East 56th Street

New York, NY 10022

286978

Richard A. Rosen

Counsel of Record

Peter Sandel

Elizabeth J. Grossman

Melina Meneguin Layerenza

Paul, Weiss, Rifkind, Wharton

& Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

(212) 373-3000

rrosen@paulweiss.com

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

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

PRELIMINARY STATEMENT

AND SUMMARY OF ARGUMENT . . . . . . . . . . . . 1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. Partisan Gerrymandering

Undermines Public Trust in

Representative Democracy . . . . . . . . . . . . . . . . . . 4

II. The Application of Well-Settled First

Amendment Doctrine Provides

the Rule of Decision Here . . . . . . . . . . . . . . . . . . . 9

A. Partisan Gerrymandering Burdens

the Associational Rights of Parties

and Their Members. . . . . . . . . . . . . . . . . . . . 9

1. The Burdens Imposed on

Appellees’ Associational Rights

Are Severe and Unconstitutional . . . . 11

2. Even if the Associational

Burdens Were Less Than Severe,

Partisan Gerrymandering

Would Still Fail the Flexible

Test This Court Designed

in Anderson v. Celebrezze . . . . . . . . . . . 14

ii

Table of Contents

Page

B. Partisan Gerrymandering Also

Flouts Other First Amendment

Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Partisan Gerrymandering

Amounts to Unconstitutional

Retaliation Against Minority

Party Voters for Their Political

Views Manifested in Their Past

Electoral Choices . . . . . . . . . . . . . . . . . 16

2. Partisan Gerrymandering

Unconstitutionally Favors Majority

Political Viewpoints over Others . . . . . 18

3. Partisan Gerrymandering Imposes

Discriminatory Burdens on the

Basis of a Speaker’s Identity as a

Minority Party Adherent . . . . . . . . . . . 21

III. Claims of Partisan Gerrymandering

Are Justiciable . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. Courts Should Intervene Because

Partisan Gerrymandering Raises the

Distinct Possibility That a Legislature

Has Entrenched Itself and Is No

Longer Accountable to the People . . . . . . . 23

iii

Table of Contents

Page

B. Our Federal Courts Have Expertise

in Ascertaining Legislative Intent . . . . . . .25

C. This Court Has Not Hesitated to

Intervene When Comparable First

Amendment Liberties Are at Stake . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Anderson v. Celebrezze,

460 U.S. 780 (1983). . . . . . . . . . . . . . . . . . . . . . 3, 14, 15

Arizona Free Enter. Club’s Freedom Club PAC v.

Bennett,

564 U.S. 721 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Arizona State Legislature v.

Arizona Indep. Redistricting Comm’n,

135 S. Ct. 2652 (2015). . . . . . . . . . . . . . . . . . . . . 2, 5, 28

Baker v. Carr,

369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Board of Educ., Island Trees Union Free Sch.

Dist. No. 26 v. Pico,

457 U.S. 853 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Branzburg v. Hayes,

408 U.S. 665 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Buckley v. Valeo,

424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bush v. Vera,

517 U.S. 952 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

California Democratic Party v. Jones,

530 U.S. 567 (2000). . . . . . . . . . . . . . . . . . . 6, 11, 12, 29

v

Cited Authorities

Page

Citizens United v. Federal Election Comm’n,

558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 22, 29

Consolidated Edison Co. of N.Y. v.

Public Serv. Comm’n of N.Y.,

447 U.S. 530 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Cousins v. Wigoda,

419 U.S. 477 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Democratic Party of the U.S. v.

Wisconsin ex rel. La Follette,

450 U.S. 107 (1981) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Elrod v. Burns,

427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

First Nat’l Bank v. Bellotti,

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Gill v. Whitford,

138 S. Ct. 1916 (2018) . . . . . . . . . . . . . . . . . 9, 11, 13, 24

Hunt v. Cromartie,

526 U.S. 541 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Karcher v. Daggett,

462 U.S. 725 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Kramer v. Union Free Sch. Dist. No. 15,

395 U.S. 621 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

vi

Cited Authorities

Page

Kusper v. Pontikes,

414 U.S. 51 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 27

Leathers v. Medlock,

499 U.S. 439 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Matal v. Tam,

137 S. Ct. 1744 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Members of the City Council of L.A. v.

Taxpayers for Vincent,

466 U.S. 789 (1984). . . . . . . . . . . . . . . . . . . . . 18, 19, 27

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

National Endowment for the Arts v. Finley,

524 U.S. 569 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . 20

National Inst. of Family & Life Advocates v.

Becerra,

138 S. Ct. 1275 (2018). . . . . . . . . . . . . . . . . . . . . . . . . 28

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

518 U.S. 712 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vii

Cited Authorities

Page

Perry v. Sindermann,

408 U.S. 593 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Regan v. Taxation with. Representation of Wash.,

461 U.S. 540 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Reynolds v. Sims,

377 U.S. 533 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rosenberger v.

Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Shaw v. Hunt,

517 U.S. 899 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Shaw v. Reno,

509 U.S. 630 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Simon & Schuster, Inc. v.

Members of the N.Y. State Crime Victims Bd.,

502 U.S. 105 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

viii

Cited Authorities

Page

Stromberg v. California,

283 U.S. 359 (1931) . . . . . . . . . . . . . . . . . . . . . . . 5-6, 18

Tashjian v. Republican Party of Conn.,

479 U.S. 208 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Terminiello v. City of Chicago,

337 U.S. 1 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Stevens,

559 U.S. 460 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

U.S. Telecom Ass’n v.

Federal Commc’ns Comm’n,

855 F.3d 381 (D.C. Cir. 2017). . . . . . . . . . . . . . . . . . . . 7

Vieth v. Jubelirer,

541 U.S. 267 (2004). . . . . . . . . . . . . . . . . . . . . 16, 19, 25

Walker v. Texas Div.,

Sons of Confederate Veterans, Inc.,

135 S. Ct. 2239 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . 5

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Wesberry v. Sanders,

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

Williams v. Rhodes,

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

ix

Cited Authorities

Page

Other Authorities

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . passim

D. Theodore Rave, Politicians as Fiduciaries,

126 Harv. L. Rev. 671 (2013) . . . . . . . . . . . . . . . . . . . 23

John Ha r t Ely, Democracy and Distr ust

(1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25, 28

Lake Research Partners & WPA Intelligence,

Memorandum to Interested Parties, Partisan

Redistricting—New Bipartisan Poll (Sept.

11, 2017), https://campaignlegal.org/sites/

default/files/memo.CLCPartisanRedistricting.

FINAL_.2.09082017%20%28002%29.pdf . . . . . . . . . 8

Samuel Issacharoff & Jonathan Nagler, Protected

from Politics: Diminishing Margins of

Electoral Competition in U.S. Congressional

Elections, 68 Ohio St. L.J. 1121 (2007) . . . . . . . . . . . . 5

1

INTEREST OF AMICUS CURIAE1

The American Jewish Committee (“AJC”) is a

nonpartisan global advocacy organization with more than

125,000 members and supporters and 34 offices worldwide.

It was founded in 1906 to protect the civil rights of

American Jews and all Americans. AJC works closely

with multinational institutions, governmental agencies,

civil society groups, and Jewish communities to uphold

and defend democratic principles and combat bigotry and

fractionalization. AJC has long acted on the principle

that individual rights are best protected in a functioning

representative democracy in which our government

officials are subject to contested elections and accountable

to their constituents. Because partisan gerrymandering

of the sort involved in these cases threatens to undermine

democratic accountability, it compromises the values

central to AJC’s mission.

PRELIMINARY STATEMENT

AND SUMMARY OF ARGUMENT

In Wesberry v. Sanders, this Court noted that “no

right is more precious in a free country than that of

having a voice in the election of those who make the

laws under which, as good citizens, we must live.” 376

U.S. 1, 17 (1964). The principal way in which the People

express their political preferences is, of course, at the

1. Counsel for all parties have consented to the filing of this

brief. Under Rule 37.6, Amicus affirms that no counsel for a party

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

for a party made a monetary contribution to fund the preparation

or submission of this brief. No person other than Amicus, or

its members or counsel, made a monetary contribution to the

preparation or submission of this brief.

2

ballot box. This Court has rightfully been vigilant

when government authorities have sought to dilute the

franchise in violation of the Equal Protection Clause. 2

But partisan gerrymandering, “the drawing of legislative

district lines to subordinate adherents of one political

party and entrench a rival party in power,” Arizona State

Legislature v. Arizona Indep. Redistricting Comm’n, 135

S. Ct. 2652, 2658 (2015), also violates First Amendment

rights, and the harms implicated go beyond those

experienced on election day.

Both district courts below found that the majority

parties in the North Carolina and Maryland legislatures

intended to subordinate adherents of the rival political

party and to entrench themselves—textbook cases of

partisan gerrymandering. See Rucho J.S. App. 287–288;

Benisek J.S. App. 48a–51a.

The courts below also concluded that the partisan

gerrymandering effected by the majority parties in North

Carolina and Maryland not only intentionally diluted the

voting power of the adherents of the minority party in

the legislature, but also thereby systematically burdened

those political minorities’ abilities to express themselves,

associate with like-minded others, and advocate for their

views. This Court has already determined that such

partisan gerrymandering is incompatible with democratic

principles. Arizona State Legislature, 135 S. Ct. at 2658

(citation omitted). These harms are redressable—and

2.  See, e.g., Baker v. Carr, 369 U. S. 186, 206 (1962); see also

League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 495

(2006) (Roberts, C.J.) (noting that the same techniques at work

in partisan gerrymandering, when deployed against certain

identifiable racial and language minority groups, “dilute minority

voting power”).

3

should be redressed—as First Amendment violations for

the reasons that follow.

I. Partisan gerrymandering undermines democracy

by subverting the public’s expectation that the government

will be accountable to the People. It not only insulates

the majority party from accountability at the polls, but

also stifles the public debate that is indispensable to

meaningfully contested elections. When the majority

in the legislature need not fear the outcome of the next

election, it is perceived to be—and, as the empirical

literature shows, 3 becomes in fact—less responsive to

the electorate. And, when the majority party takes

advantage of its legislative dominance to draw district

lines with the specific intention of entrenching its own

power, polarization and extreme partisanship result.

What incentive does the public have to actively

participate in the political marketplace of ideas if electoral

and policy outcomes appear to be predetermined by

district lines? And what incentive is there to organize in

opposition to the majority if the party in power has drawn

the map to enhance its own voice and to diminish that

of those who hold different political views? Such lack of

government neutrality offends the principles that animate

the First Amendment.

II. Fortunately, the First Amendment also provides

the framework for addressing these harms. In particular,

applying this Court’s jurisprudence on associational

burdens and the flexible test adopted in Anderson v.

Celebrezze would allow this Court to distinguish between

partisan gerrymandering intended to subvert and burden

3.  See sources cited p. 8 n.8, infra.

4

opposing political viewpoints and valid redistricting

exercises in which political affiliation is considered for

legitimate purposes.

Furthermore, other lines of First Amendment

doctrine reflect the need to protect minority views from

retaliation, viewpoint discrimination, and speakerbased discrimination. These protections have long been

regarded as key to safeguarding the marketplace of

ideas. The same concerns that have moved this Court to

intervene in those contexts previously are present in the

cases before it now.

III. Partisan gerrymandering invariably undermines

the ability of the voters to remedy this issue themselves.

In the absence of judicial intervention, then, partisanship

becomes further entrenched and democracy erodes.

This Court has the necessary competence—and the

constitutional obligation—to step in before the ongoing

malfunction of the marketplace of ideas turns into a

durable market failure.

Therefore, AJC urges this Court to uphold the district

courts’ decisions in these cases and hold that the partisan

gerrymander carried out by the legislatures in North

Carolina and Maryland violate the First Amendment.

ARGUMENT

I.

Partisan Gerrymandering Undermines

Public Trust in Representative Democracy.

The background principles that animate this Court’s

First Amendment jurisprudence underscore that our

5

democracy suffers as a result of partisan gerrymandering.

Our system of government is premised on the notion

that citizens may effect change by electing new officials

who “through words and deeds will reflect [the] electoral

mandate” of the public. Walker v. Texas Div., Sons of

Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015).

A corollary of that premise is that “the voters should

choose their representatives, not the other way around.”

See Arizona State Legislature, 135 S. Ct. at 2677 (quoting

Mitchell Berman, Managing Gerrymandering, 83 Tex.

L. Rev. 781 (2005)).

Partisan gerrymandering interferes with electoral

accountability by diluting the votes of minority partysupporters, making it substantially harder for them to

elect their preferred candidates and thereby enact their

favored policy choices.4 Partisan gerrymandering also

compromises the exercise of First Amendment liberties

that guarantees government accountability beyond

election day.

The “fundamental principle of our constitutional

system” is that “the opportunity for free political

discussion” is necessary to ensure “that government may

be responsive to the will of the people.” Stromberg v.

4.  As scholars have noted, “the fact that it requires a shift

in voter sentiment of historic proportions to cause a small change

in partisan distribution of House seats shows how far we have

strayed from the simple idea that elections are supposed to provide

a check on the government by offering a meaningful threat to

remove legislators from office in ordinary, not just extraordinary,

times.” Samuel Issacharoff & Jonathan Nagler, Protected from

Politics: Diminishing Margins of Electoral Competition in U.S.

Congressional Elections, 68 Ohio St. L.J. 1121, 1135 (2007).

6

California, 283 U.S. 359, 369 (1931). And while the First

Amendment certainly protects the speech of the “lonely

pamphleteer,”5 it also protects the national tradition of

political associations in which citizens “band together in

promoting among the electorate candidates who espouse

their political views,” California Democratic Party v.

Jones, 530 U.S. 567, 574 (2000). Yet a major effect of

partisan gerrymandering is to undermine that ability of

citizens to band together.

This Court has already acknowledged that targeted

speech suppression undermines the promise of government

accountability. “[W]henever [a] constituent can be

restrained in any manner from speaking, writing, or

publishing his opinions,” particularly when those opinions

are critical of government conduct, we worry that “public

functionaries” may in effect be “absolved from their

responsibility to their constituents.” New York Times Co.

v. Sullivan, 376 U.S. 254, 297 (1964).

The same is true when a clever legislature finds a way

to burden opponents’ speech and expressive association

without overtly making it unlawful. Public officials in

charge of drawing the district lines have the ability to

disrupt collective organization and chill their would-be

opposition by drawing districting maps that seek to

entrench themselves in power. See Roberts v. U.S.

Jaycees, 468 U.S. 609, 622 (1984) (“According protection

to collective effort on behalf of shared goals is especially

important in preserving political and cultural diversity

and in shielding dissident expression from suppression

by the majority.”).

5.  See Branzburg v. Hayes, 408 U.S. 665, 704 (1972).

7

The effects here are all the more constitutionally

troubling because, by Appellants’ own admissions, they

burden the speech and associational rights of political

minorities “in order to enhance the relative voice” of the

party in power, a concept that is “wholly foreign to the

First Amendment.” Buckley v. Valeo, 424 U.S. 1, 48–49

(1976); see also U.S. Telecom Ass’n v. Federal Commc’ns

Comm’n, 855 F.3d 381, 427 (D.C. Cir. 2017) (Kavanaugh,

J., dissenting) (“The First Amendment operates as a

vital guarantee of democratic self-government.”).6 This

outcome not only injures the Appellees—it also creates

polarized political echo chambers in which citizens lack

the opportunity to hear diverse political perspectives and

engage in robust public debate of the underlying policy

issues.

Throughout its existence, AJC has been an active

participant in the marketplace of ideas. It has observed

first-hand that vigorous, bipartisan dialogue has the power

to bridge divides and meaningfully advance the interests

of otherwise disempowered minorities.

By entrenching the power of the majority party,

North Carolina and Maryland have attempted to create a

“standardization of ideas * * * by legislatures * * * [and]

dominant political or community groups.” Terminiello v.

City of Chicago, 337 U.S. 1, 5 (1949). “There is no room

under our Constitution” for such a result, id. at 4, whether

it is accomplished by suppressing dissenting or provocative

voices or by gerrymandering opponents into political

insignificance. As this Court has held, when there is “an

attempt to give one side of a debatable public question

6.  See Rucho J.S. App. 159, 251; Benisek J.S. App. 49a–50a.

8

an advantage in expressing its views to the people, the

First Amendment is plainly offended.” First Nat’l Bank

v. Bellotti, 435 U.S. 765, 785–786 (1978). And even more

detrimentally to our representative democracy, this lack

of government neutrality undermines public confidence

that the government remains responsive and accountable

to the People.7

Indeed, beyond its demonstrable practical effects on

officials’ responsiveness to opposing-party constituent

demands, 8 par tisan ger r y mander ing ir reparably

damages the perception of government accountability

by creating an expectation that political outcomes are

7.  In a recent poll, 69% of likely voters for 2018, across party

lines, signaled that they found it “very concerning” that “partisan

gerrymandering and manipulation of district lines” deprives

voters of their right to hold their representatives accountable, with

89% of respondents finding that prospect at least “concerning.”

Lake Research Partners & WPA Intelligence, Memorandum to

Interested Parties, Partisan Redistricting—New Bipartisan

Poll, at 6 (Sept. 11, 2017), https://campaignlegal.org/sites/default/

files/memo.CLCPartisanRedistricting.FINAL_.2.09082017%20

%28002%29.pdf. Similarly, strong majorities of respondents were

very concerned that “[p]oliticians in partisan-rigged districts do

not accurately reflect the interests of their constituents” (65%),

that such politicians are more loyal to their party than their

constituents (68%), and that dominant political parties could

become entrenched even when political opinions in a state or

district are no longer in agreement (64%). Ibid.

8.  As Appellees have argued, empirical literature has shown

that “gerrymandering sharply skews legislatures (and the laws

they pass) in favor of the line-drawing party (and against the will

of the electorate).” See League of Women Voters Mot. to Affirm 6

(citing Devin Caughey et al., Partisan Gerrymandering and the

Political Process, 16 Election L.J. 453 (2017)).

9

predetermined by district lines. The resulting loss of

the public’s confidence that it is possible to bring about

political change and electoral turnover through the normal

channels of the marketplace of ideas—not only at the ballot

box but in the long road to the election—has significant

effects on the exercise of First Amendment freedoms.

Partisan gerrymandering operates to dissuade members

of the public at large from participating in politics more

generally and disrupts the ability of political parties and

their members to effectively advocate for their agendas.

See Gill v. Whitford, 138 S. Ct. 1916, 1939 (2018) (Kagan,

J., concurring).

These are not injuries in search of a constitutional

theory—these are classic First Amendment violations.

II. The Application of Well-Settled First Amendment

Doctrine Provides the Rule of Decision Here.

Traditional First Amendment principles dictate the

conclusion that partisan gerrymandering of the kind in

which the legislative majorities in North Carolina and

Maryland engaged here unconstitutionally burdens

protected expressive conduct.

A.

Partisan Gerrymandering Burdens

the Associational Rights

of Parties and Their Members.

Partisan gerrymandering burdens the associational

rights of political parties and their members by allowing

an incumbent party to burden its opponents’ ability to

organize and thus mount an effective challenge to that

party’s rule. Where the associational rights of political

10

parties are burdened, this Court has frequently stepped in

to protect those rights, even where state legislatures have

a competing interest in managing the electoral process.

This Court should intervene here as well.

It is undisputed on the records before the Court that

partisan gerrymandering has impeded the ability of

the Rucho and Benisek political parties and the voterplaintiffs affiliated with them to associate successfully.

The district court in Rucho found that individual

plaintiffs testified to harms including “decreased ability

to mobilize their party’s base, persuade independent

voters to participate, attract volunteers, raise money,

and recruit candidates”—in other words, a decreased

ability “of their party to perform its core functions”—that

amounted to violations of their First Amendment right to

associate. Rucho J.S. App. 70–72. The court also found

ample evidence of associational injuries suffered by the

organizational plaintiffs.9

9.  For example, the North Carolina Democratic Party

testified that it was difficult to “raise funds and have resources

and get the attention of the national congressional campaign

committees and other lawful potential funders for congressional

races” in districts gerrymandered to prevent Democratic victories.

Rucho J.S. App. 71–72. It was likewise difficult to recruit

candidates to run in these districts because “’the deck seem[ed]

to be stacked’” against them. Id. at 72 (quoting the deposition

of George Wayne Goodwin on behalf of the North Carolina

Democratic Party). The court found that this and similar harms

amounted to burdens on Common Cause and the League’s right

“to associate for the advancement of political beliefs.” Id. at 74

(quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).

11

The Benisek court found the plaintiff members of

the Republican party suffered similar harms. The court

considered testimony of individual plaintiffs facing “new

difficulties in their organizational efforts as a result of the

redistricting.” Benisek J.S. App. 26a. For example, one

voter who consistently voted for Republican candidates

described speaking to people in the Sixth District who felt

it was no longer worth voting after the redistricting. Id.

at 26a, 62a. The court also drew from data to corroborate

individual plaintiffs’ testimony—evidence showed a

decline in Republican participation at the polls as well as

decreased fundraising. Id. at 28a, 62a–63a.

In each of these cases “the gerrymander has

burdened the ability of like-minded people across the

State to affiliate in a political party and carry out that

organization’s activities and objects.” Gill, 138 S. Ct. at

1939 (Kagan, J., concurring).

1.

The Burdens Imposed on

Appellees’ Associational Rights

Are Severe and Unconstitutional.

This Court has struck down similar attempts by

the legislature to disadvantage members of political

parties and other groups by imposing severe burdens

on their associational rights. In California Democratic

Party v. Jones, for example, this Court concluded that

mandating blanket primaries unconstitutionally burdened

the associational rights of political parties. Writing for

the majority, Justice Scalia explained that “the First

Amendment protects the freedom to join together in

furtherance of common political beliefs.” 530 U.S. at

574 (citation and internal quotation marks omitted). The

12

imposition of restrictions, such as blanket primaries,

effectively quashes the ability of the party and “the ability

of citizens to band together in promoting among the

electorate candidates who espouse their political views.”

Ibid. Those same harms are implicated by the partisan

gerrymandering before this Court. That Appellees

remain free to register with the minority party does not

alleviate the “substantial restraint” on their “exercise of

the constitutionally protected right of free association”

imposed by partisan gerrymandering. Kusper v.

Pontikes, 414 U.S. 51, 58 (1973); see also Benisek J.S. App.

62a (describing “lack of enthusiasm, indifference to voting,

a sense of disenfranchisement, a sense of disconnection,

and confusion after the 2011 redistricting by voters”).

This Court’s jurisprudence acknowledges that

the harms at issue here go to the core of Appellees’

associational rights. In Democratic Party of the United

States v. Wisconsin ex rel. La Follette, this Court struck

down a requirement that the Democratic National Party

Convention admit delegates selected in violation of

party rules. 450 U.S. 107, 123 (1981). In so holding, this

Court explained that granting states the power to place

delegates in a National Convention over party objections

would prevent the Party from “screening out those whose

affiliation is . . . slight, tenuous, or fleeting,” thereby

inhibiting its ability to politically associate to advance its

primary objectives. Ibid. (alteration omitted).10

10.  Accord, e.g., Cousins v. Wigoda, 419 U.S. 477, 489–490

(1975) (explaining that parties are entitled to some control over

the manner by which convention delegates are chosen); Tashjian v.

Republican Party of Conn., 479 U.S. 208, 213, 229 (1986) (holding

the same with respect to primary elections).

13

Here, as in La Follette, the partisan gerrymanders

have inhibited the ability of the Benisek and Rucho

organizational and voter-plaintiffs to associate to advance

their primary objectives—namely, to promote the success

of candidates who will advance their preferred policy

objectives. See Rucho J.S. App. 69–72, 74; Benisek

J.S. App. 61a–64a. That these gerrymanders did so by

systematically undermining the minority parties’ ability to

affiliate in the first place, as opposed to by interfering with

the parties’ mechanisms for screening weak affiliations

as in La Follette, only strengthens the case for judicial

review. “By placing a state party [and its supporters] at

an enduring electoral disadvantage, the gerrymander

weakens its capacity to perform all its functions.” Gill,

138 S. Ct. at 1938 (Kagan, J., concurring). Appellees seek

a remedy against a legislative action that “substantially

abridged [their] ability to associate effectively with the

party of [their] choice.” Kusper, 414 U.S. at 58 (emphasis

added).

In NA ACP v. Alabama ex rel. Patterson, this

Court held that the First Amendment is violated where

legislative actions burden an organization’s ability to

recruit members. 357 U.S. 449, 462–463, 466 (1958). The

NAACP was at risk of being ousted from the state of

Alabama and enjoined from advancing its organizational

interests because it refused to disclose its membership

lists. Id. at 453–454. Noting that the NAACP had made

an uncontroverted showing that requiring disclosure of

the identity of its rank-and-file members would burden

its ability to recruit, this Court held that the burdens on

the associational rights of the NAACP and the individuals

affiliated with it were unconstitutional. Id. at 462–463,

466. So, too, here: Both sets of appellants describe

14

difficulty recruiting members and, in North Carolina,

partisan gerrymandering was found to have compromised

parties’ ability to recruit candidates for office.11

2.

Even if the Associational Burdens

Were Less Than Severe, Partisan

Gerrymandering Would Still Fail the

Flexible Test This Court Designed in

Anderson v. Celebrezze.

The Court need not conclude that the associational

burdens here are severe, or that strict scrutiny is

required, to uphold the decisions below.12 In Anderson v.

Celebrezze, this Court acknowledged that “[c]onstitutional

challenges to specific provisions of a State’s election laws

* * * cannot be resolved by any ‘litmus-paper test’ that will

separate valid from invalid restrictions.” 460 U.S. 780, 789

(1983) (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).

Recognizing the need for holistic inquiry, this Court

devised a flexible test that, if applied here, would allow it

to weigh different factors to better distinguish between

valid redistricting exercises and partisan gerrymandering

violative of the First Amendment. In Anderson, this

Court applied “an analytical process that parallel[ed] its

work in ordinary litigation” by “first consider[ing] the

character and magnitude of the asserted injury to the

[plaintiff’s First and Fourteenth Amendment] rights”

and weighing those rights against “the precise interests

put forward by the State as justifications for the burden

imposed by its rule.” Ibid.

11.  Rucho J.S. App. 72.

12.  Indeed, the Rucho court applied the intermediate

scrutiny standard and found that the North Carolina plaintiffs

satisfied it. Rucho J.S. App. 286.

15

Although neither of the district courts below explicitly

applied the Anderson framework to the partisan

gerrymanders before them, both courts analyzed the

burdens placed on political activity in a fact-sensitive

and nuanced way that is completely consistent with

this Court’s flexible test. Were this Court to adopt the

Anderson framework for partisan gerrymandering

claims, it would find that Maryland and North Carolina

cannot offer any legitimate justifications for the burdens

they imposed on Appellees other than their naked desire

to disadvantage the political opposition.13 See Rucho

J.S. App. 110 (“Legislative Defendants do not argue—

and never have argued—that the 2016 Plan’s express

partisan discrimination advances any democratic,

constitutional, or public interest.”); Benisek J.S. App.

48a–50a (“[W]ith respect to the mapmakers’ intent,

the process described in the record admits of no doubt.

* * * Democratic officials * * * worked to craft a map that

would specifically transform the Sixth District into one

that would predictably elect a Democrat.”).

B. Partisan Gerrymandering Also Flouts

Other First Amendment Principles.

The Partisan gerrymandering in which the North

Carolina and Maryland legislatures engaged here is also

entirely inconsistent with other core First Amendment

principles.

13.  The argument that an intent to help one party is not the

same as an intent to harm the other was properly rejected by one

of the district courts in this case. As that court explained, “[t]he

First Amendment does not—indeed, cannot—distinguish between

these intents because they are one and the same when applicable

to two-party elections.” Benisek J.S. App. 50a.

16

1.

Partisan Gerrymandering Amounts

to Unconstitutional Retaliation

Against Minority Party Voters for

Their Political Views Manifested

in Their Past Electoral Choices.

Partisan gerrymandering “burden[s] or penalize[es]”

individuals “because of their participation in the electoral

process, their voting history, their association with a

political party, or their expression of political views.”

See Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy,

J., concurring in the judgment). Fortunately, this Court

can draw from a robust judicial tradition of protecting

individuals from impermissible government disfavor or

retaliation on account of their political affiliation to remedy

these harms.

Indeed, this Court’s First Amendment jurisprudence

teaches that the government cannot exercise its discretion

in a “narrowly partisan or political manner.” Board of

Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,

457 U.S. 853, 870–71 (1982) (joint opinion of Brennan,

Marshall, Stevens, and Blackmun, JJ.). That rule is based

on the recognition that a single discretionary decision

that burdens a person who holds different political views14

14.  See Rutan v. Republican Party of Ill., 497 U.S. 62, 65

(1990) (applying the First Amendment to prohibit government

employers from making “promotion, transfer, recall, and hiring

decisions involving low-level public employees * * * based on

party affiliation and support”); O’Hare Truck Serv., Inc. v.

City of Northlake, 518 U.S. 712, 715, 717 (1996) (holding that

contractors, like government employees, are protected by the First

Amendment from patronage dismissals because such dismissals

inappropriately subject government employment “to the express

condition of political beliefs or prescribed expression” and burden

the right to political association).

17

could chill all his co-partisans. That rationale applies with

all the more force to a decision by a government body

to draw district lines that burden all adherents of the

opposing party across the state, chilling all of its wouldbe supporters.

The records before this Court show that the message

was heard loud and clear. The Rucho voter-plaintiffs

tasked with “canvassing and get-out-the-vote efforts”

had difficulty getting fellow Democrats to vote because

“they felt their vote didn’t count.” Rucho J.S. App. 70.

The Benisek plaintiffs, who attempted to encourage

fellow Republicans to vote in the Sixth District, found

that people generally felt that it was “not worth voting

anymore,” and “[felt] disenfranchised.” Benisek J.S. App.

26a. The redrawn district lines resulted in widespread

“confus[ion] about the candidates.” Id. at 27a. As a result,

individuals who had associated with a minority party

were discouraged from expressing themselves through

the electoral process, thereby insulating the incumbent

party from the need to be responsive to the electorate.

In Elrod v. Burns, this Court protected government

employees from being penalized on the basis of their

political affiliation, holding that patronage dismissals

severely curtail “the individual’s ability to act according to

his beliefs.” 427 U.S. 347, 355–356 (1976). As in Elrod, the

cases before this Court present government action that has

the impermissible and undemocratic effect of “tip[ping]

the electoral process in favor of the incumbent party” by

burdening the right to political speech and association.

Compare ibid., with Rucho J.S. App. 70 (explaining that

the Rucho voter-plaintiffs suffered “decreased ability to

mobilize their party’s base, persuade independent voters

18

to participate, attract volunteers, raise money, and recruit

candidates”). This effect enables the incumbent party

to rely on indirect regulation of political association to

“produce a result which it could not command directly,” in

violation of the First Amendment. Perry v. Sindermann,

408 U.S. 593, 597 (1972) (citation omitted).

2.

Partisan Gerrymandering

Unconstitutionally Favors Majority

Political Viewpoints over Others.

By favoring one set of political beliefs over another,

partisan gerrymanders also collide with the First

Amendment’s prohibition on viewpoint discrimination.

Indeed, though this Court has held that a state may restrict

speech when necessary to advance a significant and

legitimate state interest, there are some interests “such as

a desire to suppress support for a minority party” that are

“plainly illegitimate.” Members of the City Council of L.A.

v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984).15 The

two cases before this Court are partisan gerrymanders

motivated solely by such “plainly illegitimate” interests as

party entrenchment and the “desire to suppress support

for a minority party.” Ibid. Appellants concede as much.

See Benisek J.S. App. 12a (quoting Governor O’Malley’s

Deposition confirming that he “set out to draw the borders

in a way that was favorable to the Democratic party”);

Rucho J.S. App. 221 (“[T]he General Assembly expressly

drew the 2011 plan ‘to minimize the number of districts

in which Democrats would have an opportunity to elect a

Democratic candidate.’”) (quoting the deposition of one of

the principal mapmakers, Dr. Hofeller).

15.  See also Stromberg, 283 U.S. at 369–370.

19

Time and time again, this Court has recognized that

“governments must not be allowed to choose ‘which issues

are worth discussing or debating.’” Consolidated Edison

Co. of N.Y. v. Public Serv. Comm’n of N.Y., 447 U.S. 530,

537–538 (1980) (quoting Police Dep’t. of Chi. v. Mosley, 408

U.S. 92, 96 (1972)). By extension, the government cannot

constitutionally regulate speech in ways that favor some

viewpoints over others. See, e.g., Taxpayers for Vincent,

466 U.S. at 804. The alternative “raises the specter that

the government may effectively drive certain ideas or

viewpoints from the marketplace,” an outcome that the

First Amendment “places * * * beyond the power of the

government.” Simon & Schuster, Inc. v. Members of the

N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991).

This background prohibition is so essential to First

Amendment jurisprudence that viewpoint discrimination

is presumptively unconstitutional. Rosenberger v. Rector

& Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995).

Partisan gerrymandering, like direct viewpoint

discrimination, threatens to drive the minority political

view out of the marketplace of ideas by diminishing the

voice of the disfavored political party in favor of the

majority’s view. See Vieth, 541 U.S. at 314 (Kennedy, J.,

concurring in the judgment) (“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.”).

The First Amendment safeguards these minority

views from regulation designed to weaken them well

before they are pushed out of the marketplace. By

discriminating in the drawing of the redistricting maps

and ultimately imposing an electoral penalty, partisan

20

gerrymandering inexcusably burdens Appellees’ choice

to advocate for minority party positions and candidates

free from government disfavor. Here, the effects of

partisan gerrymandering have already taken hold. The

time for judicial vindication is now. Indeed, the principle

of viewpoint neutrality “protects more than the right to

identify with a particular side. It protects the right to

create and present arguments for particular positions in

particular ways, as the speaker chooses.” Matal v. Tam,

137 S. Ct. 1744, 1766 (2017) (Kennedy, J., concurring in

part and concurring in the judgment).

The mapmaking at issue here functions in the

same way as a subsidy to benefit one viewpoint over

another, something this Court has held violates the First

Amendment.16 Here, “[t]he direct result” of identifiably

associating with, endorsing the views of, or voting for the

minority parties “is a state-provided * * * subsidy to a

political rival” in the form of a gerrymandered map. See

Arizona Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721, 742 (2011) (Roberts, C.J.). And while there

is some precedent for viewpoint-neutral government

16.  See Rosenberger, 515 U.S. at 834 (discussing Regan

v. Taxation with Representation of Wash., 461 U.S. 540, 548

(1983)); see also Nat’l Endowment for the Arts v. Finley, 524

U.S. 569, 587 (1998) (“If the NEA were to leverage its power to

award subsidies on the basis of subjective criteria into a penalty

on disfavored viewpoints, then we would confront a different

case. We have stated that, even in the provision of subsidies,

the Government may not ‘ai[m] at the suppression of dangerous

ideas.’”) (citation omitted); Leathers v. Medlock, 499 U.S. 439,

447 (1991) (“[D]ifferential taxation of First Amendment speakers

is constitutionally suspect when it threatens to suppress the

expression of particular ideas or viewpoints.”).

21

subsidies surviving First Amendment challenge, “none of

those cases—not one—involved a subsidy given in direct

response to the political speech of another, to allow the

recipient to counter that speech” more effectively. Id. at

743.

3.

Partisan Gerrymandering Imposes

Discriminatory Burdens on the Basis

of a Speaker’s Identity as a

Minority Party Adherent.

By imposing burdens based on the political affiliation—

that is, the partisan identity—of the voter, partisan

gerrymandering amounts to impermissible contentdiscrimination based on the identity of the speaker.

In each of the cases before this Court, the incumbent

party drew district lines on the basis of the ascertainable

partisan identity of voters with the goal of decreasing

the electoral clout of the minority party. See Rucho J.S.

App. 159 (quoting Representative David Lewis, one of

two officials responsible for the redistricting plan, during

a debate on the proposed map, stating “that he believed

‘electing Republicans is better than electing Democrats,’

and therefore that he ‘drew this map in a way to help

foster’ the election of Republican candidates”); Benisek

J.S. App. 21a (quoting talking points for Senate President

Thomas V. Miller stating that “[i]n the face of Republican

gains in redistricting in other states around the nation,

we have a serious obligation to create this opportunity”).

These actions amount to the very same speaker-based,

indirect censorship traditionally forbidden by the First

Amendment, and should not be allowed to stand here.

22

“Premised on mistrust of governmental power,” the

First Amendment precludes officials from distinguishing

among different speakers—or choosing favorites—out

of concern that speaker-based regulations may be

“instruments to censor,” much like viewpoint restrictions.

Citizens United v. Federal Election Comm’n, 558 U.S.

310, 340–341 (2010). This Court has stepped in to protect

against impermissible disfavor in cases comparable to the

ones before it now.

For example, in Citizens United, this Court held

that corporations are entitled to fund independent

political broadcasts related to elections because political

speech—an “essential mechanism of democracy” that

functions as “the means to hold officials accountable to the

people”—“must prevail against laws that would suppress

it by design or inadvertence.” Id. at 339. In so holding,

the Court concluded that “[t]he First Amendment does not

permit Congress to make these categorical distinctions

based on the corporate identity of the speaker and the

content of the political speech,” id. at 364, because such

distinctions “are all too often simply a means to control

content,” id. at 340. The concern is particularly acute

where, like here, “[t]he State has left unburdened those

speakers whose messages are in accord with its own

views.” Sorrell v. IMS Health Inc., 564 U.S. 552, 580

(2011).

Here, the majority party-controlled legislatures of

North Carolina and Maryland did just that. That the

disfavored speakers in the cases now before this Court

are not subject to a complete ban does not change the

outcome. “Lawmakers may no more silence unwanted

speech by burdening its utterance than by censoring its

content” via targeting of certain speakers. Id. at 566.

23

The partisan gerrymanders burden the political

expression of minority parties and their adherents while

leaving that of the party in power and its supporters

undisturbed and therefore amplified. “This the State[s]

cannot do.” Ibid.

III. Claims of Partisan Gerrymandering Are Justiciable.

A.

Courts Should Intervene Because

Partisan Gerrymandering Raises the

Distinct Possibility That a Legislature

Has Entrenched Itself and Is No Longer

Accountable to the People.

This Court has used the metaphor of the marketplace

of ideas to describe the “[c]ompetition in ideas and

government policies” that “is at the core of our electoral

process and of the First Amendment freedoms.” Williams

v. Rhodes, 393 U.S. 23, 32 (1968). The marketplace

metaphor is particularly appropriate here, for the

harms of partisan gerrymandering described in Parts

I and II are akin to market capture. See D. Theodore

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

671, 692 (2013) (“What is most disturbing about political

gerrymandering * * * is not that it discriminates against

some discrete group, but rather that insiders capture

and manipulate the very processes from which they draw

their legitimacy.”). As this Court has recognized, without

a functioning marketplace of ideas, “the public could not

freely choose a government pledged to implement policies

that reflect the people’s informed will.” Sorrell, 564 U.S.

at 583.

Because partisan gerrymandering makes it harder

to vote the legislatures who adopted the offending

24

district lines out of office, it is appropriate for the courts

to intervene. See Gill, 138 S. Ct. at 1935 (Kagan, J.,

concurring) (“[O]nly the courts can do anything to remedy

the problem, because gerrymanders benefit those who

control the political branches.”).

In a different context that is instructive here,

Chief Justice Warren noted that “the presumption of

constitutionality” that often attaches to congressional or

other legislative action, is “based on an assumption that

the institutions of state government are structured so

as to represent fairly all the people.” Kramer v. Union

Free Sch. Dist. No. 15, 395 U.S. 621, 628 (1969). When a

challenge calls into question that “basic assumption, the

assumption can no longer serve as the basis for presuming

constitutionality.” Id. Nor can it support any hope for a

political remedy for the political process gone awry.

Partisan gerrymandering results in a malfunction of

the political marketplace of ideas that is so pervasive that

even advocates of minimalist or restrained approaches

to judicial review would favor judicial intervention. See

John Hart Ely, Democracy and Distrust 103 (1980)

(recommending an approach in which courts intervene

“when the ‘market,’ in our case the political market, is

systemically malfunctioning”); id. at 117 (noting that

voting rights cases “involve rights (1) that are essential

to the democratic process and (2) whose dimension cannot

safely be left to our elected representatives, who have an

obvious vested interest in the status quo”). The current

landscape is the epitome of the “process * * * undeserving

of trust” that characterizes market malfunction. Id. at

103. Here, “the ins [i.e., the political parties in control] are

choking off the channels of political change to ensure that

they will stay in and the outs will stay out,” and “though

25

no one is actually [that is to say, literally] denied a voice or

a vote, representatives beholden to an effective majority

are systematically disadvantaging some minority out of

simple hostility.” Ibid.

As AJC can attest from its decades of advocacy work

around the world, a malfunctioning political process is

detrimental to minority populations and can operate

to “deny[ ] that minority the protection afforded other

groups by a representative system.” See ibid. That the

minorities in question are the two major political parties

only speaks to the precision and effectiveness of the

partisan gerrymandering threat to the normal channels

of the political process. Fortunately, “constitutional

law appropriately exists for those situations where

representative government cannot be trusted, not those

where we know it can.” Id. at 183. And unlike elected

politicians whose very own continuance in office may be

at stake in the future of partisan gerrymandering, judges

are well-positioned to command the trust of the public that

they will be neutral arbiters.

B. Our Federal Courts Have Expertise in

Ascertaining Legislative Intent.

In order to determine that redrawn maps violate

the First Amendment, it may be necessary to determine

legislative intent. See Vieth, 541 U.S. at 314 (Kennedy, J.,

concurring in the judgment) (“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.”) (emphasis

added). Given the myriad legitimate considerations—

26

political and otherwise—that go into redistricting,17

discerning improper legislative intent may prove essential

to creating a manageable legal framework for the analysis

of partisan gerrymandering. Fortunately, courts are wellequipped to identify illicit legislative intent.

In a hyper-politicized climate, the determination of

legislative intent is not always difficult. Here, for instance,

the intent to draw legislative maps on the basis of party

affiliation is transparent. The district court in Benisek

found the record to be “replete with direct evidence” of

“the specific intent to flip the Sixth District from safely

Republican to likely Democratic.” Benisek J.S. App.

49a–51a. Similarly, the district court in Rucho found

that “Plaintiffs adduced more-than-sufficient evidence

to prove that, in enacting the 2016 Plan, the General

Assembly predominantly intended to ‘subordinate’ the

interests of entities and voters who supported, or were

likely to support, non-Republican candidates. Rucho J.S.

App. 287–288.

17.  As this Court held in Karcher v. Daggett, “[a]ny number

of consistently applied legislative policies” may qualify as rational,

legitimate state interests in the redistricting context, “including,

for instance, making districts compact, respecting municipal

boundaries, preserving cores of prior districts, and avoiding

contests between incumbent Representatives.” 462 U.S. 725, 740

(1983). Some of those redistricting objectives may require limited,

nondiscriminatory use of political affiliation data—particularly

when it comes to incumbency protection, a valid purpose when

undertaken “in the limited form of avoiding contests between

incumbent[s].” Bush v. Vera, 517 U.S. 952, 964 (1996) (citation and

internal quotation marks omitted; alteration in original).

27

But even in more challenging cases, there is nothing

unusual about courts assessing legislative intent. Courts

are experienced in examining a factual record and

identifying impermissible intent behind statutes. As

this Court has noted, “the mere recitation of a benign

* * * purpose is not an automatic shield which protects

against any inquiry into the actual purposes underlying

a statutory scheme.” Weinberger v. Wiesenfeld, 420 U.S.

636, 648 (1975). Moreover, this Court has time and again

considered a legislature’s motive in drawing congressional

maps. See, e.g., Shaw v. Reno, 509 U.S. 630 (1993); Shaw v.

Hunt, 517 U.S. 899 (1996); Hunt v. Cromartie, 526 U.S. 541

(1999). In League of United Latin American Citizens, this

Court reiterated that “[i]t is undeniable that identifying

the motive for making [the] basic decision [of the state in

drawing a new congressional map] is a readily manageable

judicial task.” 548 U.S. at 457.

The courts play an important role in ferreting out

statutes with impermissible invidious intent. Because

“a denial of constitutionally protected rights demands

judicial protection,” Reynolds v. Sims, 377 U.S. 533, 567

(1964), that is the role the Court should assume here.

C.

This Court Has Not Hesitated to Intervene

When Comparable First Amendment

Liberties Are at Stake.

In protecting First Amendment values in politically

polarized contexts, courts not only protect the speaker

herself but also safeguard against the chilling of those

who, upon witnessing such use of government power, may

choose to be silent rather than risk the consequences.

See, e.g., Taxpayers for Vincent, 466 U.S. at 800–801.

28

Additionally, these impositions unfairly amplify views that

accord with the State’s own. See National Inst. of Family

& Life Advocates v. Becerra, 138 S. Ct. 2361, 2377 (2018)

(explaining that the imposing a burden on a “curiously

narrow subset of speakers * * * run[s] the risk that the

state has left unburdened those speakers whose messages

are in accord with its own views”) (citation and internal

quotation marks omitted). As this Court has shown in its

myriad cases addressing these kinds of harms, it is willing

and able to step in to address these harms.

To be sure, holding that partisan gerrymandering

is justiciable here may invite further disputes about

partisan gerrymandering, causing the Court to enter

the thicket. This Court is familiar with this conundrum,

as it confronted a similar situation before adopting the

one-person, one-vote standard. Then, as now, for the

Court “to stay out of the area altogether * * * would

have meant * * * that the ins would simply have gone on

maintaining their positions.” Ely 124. Such an outcome in

the malapportionment context would have been “no more

compatible with the underlying theory of our Constitution

than taking away some people’s votes altogether.” Ibid.

The same is true here, because, as shown above, “partisan

gerrymanders * * * are incompatible with democratic

principles.” Arizona State Legislature, 135 S. Ct. at 2658

(alteration and citation omitted).

29

CONCLUSION

This Court has recognized that “[t]he right of citizens

to inquire, to hear, to speak, and to use information to

reach consensus is a precondition to enlightened selfgovernment and a necessary means to protect it.” Citizens

United, 558 U.S. at 339. The same is true of the “ability

of citizens to band together” for political ends. Jones, 530

U.S. at 574. The partisan gerrymandering cases before

this Court present serious First Amendment harms that

are not susceptible to a political solution and that threaten

the democratic experiment as a whole.

Upon which branch of government, if not the

judiciary, can the people rely when partisan vitriol

threatens to stifle the electoral voice of the minority and

infringe upon the right to politically associate? Indeed,

Article III courts have confronted these questions so

many times and in such varied contexts, that they have

developed sophisticated, detailed frameworks to remedy

First Amendment violations. “The Constitution is not a

document ‘prescribing limits, and declaring that those

limits may be passed at pleasure.’” United States v.

Stevens, 559 U.S. 460, 470 (2010) (Roberts, C.J.) (quoting

Marbury v. Madison, 1 Cranch 137, 178 (1803)). It is up

to the courts to enforce these limits.

For the reasons urged herein, we respectfully ask that

the judgments of the courts below be affirmed.

30

Respectfully submitted,

Marc D. Stern

A merican Jewish Committee

165 East 56th Street

New York, NY 10022

Richard A. Rosen

Counsel of Record

Peter Sandel

Elizabeth J. Grossman

Melina Meneguin Layerenza

Paul, Weiss, Rifkind, Wharton

& Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

(212) 373-3000

rrosen@paulweiss.com

Counsel for Amicus Curiae18

M arch 2019

18.  Teresa Akkara also contributed to the preparation of

this amicus brief.