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

No. 18-726

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

In The

Supreme Court of the United States

-----------------------------------------------------------------LINDA H. LAMONE, et al.,

Appellants,

v.

O. JOHN BENISEK, et al.,

Appellees.

-----------------------------------------------------------------On Appeal from the

United States District Court

for the District of Maryland

-----------------------------------------------------------------REPLY BRIEF FOR APPELLANTS

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

Attorney General

of Maryland

SARAH W. RICE

JENNIFER L. KATZ

ANDREA W. TRENTO

Assistant Attorneys General

STEVEN M. SULLIVAN*

Solicitor General

JULIA DOYLE BERNHARDT

Chief of Litigation

200 Saint Paul Place

Baltimore, Maryland 21202

ssullivan@oag.state.md.us

(410) 576-6325

Attorneys for Appellants

MARCH 2019

*Counsel of Record

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

iii

REPLY BRIEF FOR APPELLANTS ....................

1

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

1

I.

THE FIRST AMENDMENT RETALIATION TEST

DOES NOT SUPPLY A “LIMITED AND PRECISE”

PARTISAN GERRYMANDERING STANDARD .......

1

A. Plaintiffs Concede That Their Test Is

Not “Limited and Precise” ...................

2

B. Plaintiffs Cannot Cure Their Standard’s

Inadequacies by Relabeling It or

Conflating It with Other Types of

Claims ..................................................

6

C. Plaintiffs’ Test Would Impair States’

Ability to Achieve Proportional

Representation and Remedy Past

Gerrymanders ......................................

8

D. Plaintiffs’ Test Fails to Account for the

People’s Adoption of the Redistricting

Plan in the Referendum ...................... 11

II.

THE DISTRICT COURT FAILED TO ADHERE TO

THE REQUIREMENTS FOR DECIDING MOTIONS

FOR SUMMARY JUDGMENT ............................ 14

A. A Cross-Motion for Summary Judgment Is Not a Waiver of Trial .............. 15

B. Genuine Disputes of Material Fact

Preclude Granting Summary Judgment

to Plaintiffs .......................................... 17

ii

TABLE OF CONTENTS—Continued

Page

C. The District Court Impermissibly Relied

on Evidence Subject to Unresolved

Objections ............................................ 19

III.

EQUITABLE PRINCIPLES AND THE PUBLIC

INTEREST PRECLUDE INJUNCTIVE RELIEF ..... 22

CONCLUSION..................................................... 26

iii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) .......... 8, 12

Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015)........ 7, 11

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

S. Ct. 1378 (2015) ......................................................8

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..........................4

Clements v. Fashing, 457 U.S. 957 (1982) ....................8

Cook v. Gralike, 531 U.S. 510 (2001) ............................8

Davis v. Bandemer, 478 U.S. 109 (1986) ......................5

Diaz v. Silver, 978 F. Supp. 96 (E.D.N.Y.), aff ’d,

522 U.S. 801 (1997) .................................................25

Easley v. Cromartie, 532 U.S. 234 (2001) ............... 9, 14

Fielding v. Tollaksen, 510 F.3d 175 (2d Cir.

2007) ........................................................................19

Gaffney v. Cummings, 412 U.S. 735 (1973) .............. 7, 9

García-Ayala v. Lederle Parenterals, Inc., 212

F.3d 638 (1st Cir. 2000) ...........................................16

Gill v. Whitford, 138 S. Ct. 1916 (2018)......................11

Hill v. SmithKline Beecham Corp., 393 F.3d 1111

(10th Cir. 2004)........................................................19

Hotel 71 Mezz Lender LLC v. National Ret.

Fund, 778 F.3d 593 (7th Cir. 2015) .........................15

Hunt v. Cromartie, 526 U.S. 541 (1999) ......... 14, 17, 19

iv

TABLE OF AUTHORITIES—Continued

Page

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ............................................... 3, 4

Major League Baseball Props., Inc. v. Salvino

Inc., 542 F.3d 290 (2d Cir. 2008) .............................19

Market Street Assocs. Ltd. P’ship v. Frey, 941

F.2d 588 (7th Cir. 1991) ..................................... 15, 16

Midland Funding, LLC v. Johnson, 137 S. Ct.

1407 (2017) ..............................................................22

Miller v. Johnson, 515 U.S. 900 (1995) .........................7

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) ...................................................6

Norse v. City of Santa Cruz, 629 F.3d 966 (9th

Cir. 2010) .................................................................19

Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565

(1916) .......................................................................11

Perez v. Abbott, 267 F. Supp. 3d 750 (W.D. Tex.

2017), rev’d in part, 138 S. Ct. 2305 (2018) ............25

Perry v. Perez, 565 U.S. 388 (2012) ...............................7

Pickering v. Board of Educ., 391 U.S. 563 (1968) .........6

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

Moser, 747 F.3d 814 (10th Cir. 2014) ........................7

Thornburg v. Gingles, 478 U.S. 30 (1986)............. 3, 4, 9

United States v. Samaniego, 345 F.3d 1280 (11th

Cir. 2003) .................................................................20

Vieth v. Jubelirer, 541 U.S. 267 (2004) ......... 1, 2, 3, 5, 8

v

TABLE OF AUTHORITIES—Continued

Page

Washington State Grange v. Washington State

Republican Party, 552 U.S. 442 (2008) ............. 12, 13

Winter v. Natural Res. Def. Council, Inc., 555 U.S.

7 (2008) ....................................................................16

CONSTITUTIONAL PROVISIONS

Md. Const. art. XVI, § 5(b) ..........................................11

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

STATUTES

52 U.S.C. § 10301 ..........................................................3

Md. Code Ann., Elec. Law § 7-105(b) .........................13

RULES

Fed. R. Evid. 702 .........................................................22

OTHER AUTHORITIES

Frederick County Republican Central Committee Campaign Reports, MARYLAND CAMPAIGN

REPORTING INFORMATION SYSTEM, https://

campaignfinance.maryland.gov/Public/View

FiledReports ...........................................................21

National Conference of State Legislatures,

“State Partisan Composition” (Feb. 4, 2019),

available at http://www.ncsl.org/research/aboutstate-legislatures/partisan-composition.aspx

(last visited Mar. 9, 2019) .........................................5

vi

TABLE OF AUTHORITIES—Continued

Page

Population Change for Counties in the United

States and for Municipios in Puerto Rico: 2000

to 2010 (CPH-T-1), https://www.census.gov/data/

tables/time-series/dec/cph-series/cph-t/cph-t1.html (last visited Mar. 14, 2019).................... 18, 19

1

REPLY BRIEF FOR APPELLANTS

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

ARGUMENT

I.

THE FIRST AMENDMENT RETALIATION TEST DOES

NOT SUPPLY A “LIMITED AND PRECISE” PARTISAN

GERRYMANDERING STANDARD.

Plaintiffs’ brief sidesteps the central problem

identified in the State’s opening brief: plaintiffs’ proposed test, as adopted by the district court, does not

provide a limited, precise, reliably fair, and politically

neutral means of determining the line separating “excessive” political considerations from what is constitutionally acceptable. See Vieth v. Jubelirer, 541 U.S. 267,

292-93 (2004) (plurality); id. at 316 (Kennedy, J., concurring in judgment); id. at 365 (Breyer, J., dissenting).

Plaintiffs attempt to avoid the issue in five ways.

First, they distance themselves from the retaliation

theory they advanced below and persuaded the district

court to adopt. Second, they propose that the Court

treat redistricting legislation as if it were not subject

to the same considerations that apply to all other

forms of legislation. Third, they advocate subjecting

partisan gerrymandering claims to a truncated version

of Voting Rights Act, Section 2 analysis. Fourth, they

offer unconvincing assurances that the test adopted

below will not produce certain undesirable consequences that flow from what the district court has

opined and included in its judgment. And fifth, they

argue that the voters’ adoption of the redistricting

plan by referendum should be disregarded. These

2

arguments fail to rescue their standard from unmanageability.

A. Plaintiffs Concede That Their Test Is

Not “Limited and Precise.”

1. The plaintiffs confirm that their First Amendment retaliation test is not “limited and precise.” Vieth,

541 U.S. at 306 (Kennedy, J.). As explained in the

State’s opening brief at 34-36, it falls to the injury or

“burden” element to separate the acceptable from the

excessive in redistricting, a task that element cannot

accomplish. In their brief, plaintiffs reaffirm that the

required showing for their “representational” or votedilution injury is no more exacting, nor illuminating,

than “some practical difference” to voters as the result

of changed district boundaries. Appellees’ Br. 38. Plaintiffs also acknowledge that the associational variant of

their First Amendment retaliation standard likewise

does not purport to provide any “bright line” or “litmus

test,” id. at 40, that could give practical guidance to

courts adjudicating partisan gerrymandering claims

and to legislators drawing future district maps. They

also offer nothing to address the difficulties of measuring and proving causation of alleged harms to voters’

interest in voting and political engagement.

But such guidance is necessary to equip courts

and legislators to determine, with reliable consistency,

the point where a redistricting plan crosses the line

between permissible and “excessive” consideration of

partisan political goals, and becomes an “unjustified

3

abuse of partisan boundary-drawing considerations.”

Vieth, 541 U.S. at 365 (Breyer, J., dissenting). This need

exists because the Court has not forbidden all consideration of partisan goals in districting. Id. at 355; see

also id. at 359-60 (explaining how the use of political

considerations in redistricting can serve “democratic

ends”); id. at 361 (explaining that “[t]he need for legislative stability cannot justify entrenchment” in power

of the minority).

2. Plaintiffs attempt to compensate for the deficiencies of the vote-dilution formulation by proposing

an abridged version of the analysis prescribed in

Thornburg v. Gingles, 478 U.S. 30 (1986), for cases

under Section 2 of the Voting Rights Act, 52 U.S.C.

§ 10301. Appellees’ Br. 34-35. Plaintiffs’ proposal is illconsidered for two principal reasons. First, the Court

adopted the Gingles analysis to implement Congressional intent, as revealed in the text of Section 2 and

its legislative history, especially factors discussed in

the Senate Report accompanying the 1982 amendments to the Act. See Gingles, 478 U.S. at 43-44, 47-51.

In more than three decades since Gingles was decided,

the Court has applied the test only to claims brought

under Section 2. See, e.g., League of United Latin Am.

Citizens v. Perry, 548 U.S. 399, 413-23, 423-42 (2006)

(“LULAC”) (addressing separately partisan gerrymandering claims and a Section 2 challenge, without suggesting any affinity between the two).

Second, plaintiffs’ modified version of Gingles uses

only its three “preconditions” and omits the factors

that comprise Gingles’ “totality of the circumstances”

4

component. That component requires a court to “determine whether members of a racial group have less opportunity than do other members of the electorate,” by

considering factors that include “ ‘the extent to which

minority group members bear the effects of past discrimination in areas such as education, employment,

and health, which hinder their ability to participate effectively in the political process.’ ” LULAC, 548 U.S. at

425-26 (plurality op.) (citation omitted). These factors

go to the “essence” of a Section 2 claim. Gingles, 478

U.S. at 47.

Plaintiffs omit the “totality of the circumstances”

component, presumably because they are not members

of a racial minority with a history of suffering oppression and exclusion from the political process. As plaintiffs themselves acknowledge, merely satisfying the

three Gingles preconditions, absent consideration of

the “totality of the circumstances,” does not suffice to

establish a vote-dilution claim under Section 2. Appellees’ Br. 36 n.5. There is no reason why it should serve

to establish a partisan gerrymandering vote-dilution

claim under the First Amendment.

3. Plaintiffs suggest reasons why their test

might be “limited” in application, but those suggestions do not instill confidence. For example, plaintiffs

assert that “[t]he specific intent requirement serves as

an important and effective filter against future challenges to redistricting maps under the First Amendment,” Appellees’ Br. 46, since “any allegation of

legislative intent would have to be a plausible one,” id.

at 47 (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-82

5

(2009)). But, as plaintiffs insisted in the previous appeal, “ ‘[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the

likely political consequences of the reapportionment

were intended.’ ” Benisek v. Lamone, No. 17-333, Appellants’ Br. 36 (quoting Davis v. Bandemer, 478 U.S. 109,

129 (1986)). Similarly, a majority of justices in Vieth

agreed that “some intent to gain political advantage is

inescapable whenever political bodies devise a district

plan, and some effect results from the intent.” 541 U.S.

at 298 (plurality op.); id. at 344 (Souter, J., dissenting)

(same). Thus, only in the rare case will a court dismiss

as not “plausible” an allegation of partisan legislative

intent in redistricting. Consequently, the intent element does not promise to make the test a “limited” one.

Plaintiffs also speculate that “it is very unlikely

that the specific intent to single out the supporters of

a particular political party for disfavored treatment

would arise outside of States with single-party control

of the governor’s mansion and both chambers of the

legislature.” Appellees’ Br. 46-47. That, too, is not much

of a filter because today 36 of the 50 states have “single-party control of the governor’s mansion and both

chambers of the legislature”; in 48 of the 50 states, a

single political party controls both houses of the legislature. National Conference of State Legislatures,

“State Partisan Composition” (Feb. 4, 2019), available

at http://www.ncsl.org/research/about-state-legislatures/

partisan-composition.aspx (last visited Mar. 9, 2019).

6

B. Plaintiffs Cannot Cure Their Standard’s

Inadequacies by Relabeling It or Conflating It with Other Types of Claims.

In response to the State’s showing that a First

Amendment retaliation claim is ill-suited for the redistricting context and has no history in challenges to legislation, Appellants’ Br. 44-50, plaintiffs deny that

their claim involves “retaliation” as such; suggest that

redistricting legislation may be treated differently

from all other legislation; and invoke case law not involving First Amendment retaliation. These attempts

fail to solve the problem of their standard’s unsuitability.

Whatever label plaintiffs might prefer, they are

unable to cite any case employing the First Amendment retaliation framework to analyze or invalidate

legislation. The closest they come is to cite two cases

where it was used to address claims against “multimember political bodies similar to legislatures,” Appellees’ Br. 31 (citing Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274 (1977); Pickering v. Board

of Educ., 391 U.S. 563 (1968)), but those decisions, like

other First Amendment retaliation cases, involved

challenges to actions taken by government in its executive capacity, as the employer that terminated the

complainants.

Next, plaintiffs suggest that applying the framework to redistricting legislation would not present the

same difficulties that have caused courts to avoid applying it to any other legislation. Plaintiffs say that,

7

unlike other forms of legislation, redistricting “has

nothing to do with lawmakers’ advancing policies of

general application that they and their supporters prefer but their political opponents do not.” Appellants’ Br.

28. Plaintiffs cite no authority supporting that distinction, which does not withstand scrutiny. This Court’s

“precedent teaches that redistricting is a legislative

function” that “involves lawmaking in its essential

features and most important aspect.” Arizona State

Legislature v. Arizona Indep. Redistricting Comm’n,

135 S. Ct. 2652, 2668, 2667 (2015). Like other subjects

of legislation, redistricting may involve “adopt[ing]

and follow[ing] a policy,” Gaffney v. Cummings, 412

U.S. 735, 738 (1973), and “ordinarily involves criteria

and standards that have been weighed and evaluated

by the elected branches in the exercise of their political

judgment,” Perry v. Perez, 565 U.S. 388, 393 (2012).

An adopted “plan reflects the State’s policy judgments”

on “how to shift existing [district boundaries] in response to . . . population growth.” Id. As with other

types of legislative policy judgments, “various interests

compete for recognition” in redistricting, Miller v.

Johnson, 515 U.S. 900, 914 (1995), and any choice made

in map drawing is likely to have its “supporters” and

“opponents,” Appellees’ Br. 28. Therefore, contrary to

plaintiffs’ suggestion, applying First Amendment retaliation analysis to redistricting legislation raises

“the prospect of every loser in a political battle claiming that enactment of legislation it opposed was motivated by hostility toward the loser’s speech.” Planned

Parenthood of Kan. & Mid.-Mo. v. Moser, 747 F.3d 814,

842 (10th Cir. 2014), abrogated in part on other

8

grounds by Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378 (2015).

Finally, plaintiffs seek to avoid the problems

plaguing the First Amendment retaliation test, by relying on cases not involving retaliation. See, e.g., Appellees’ Br. 36-37 (discussing Anderson v. Celebrezze, 460

U.S. 780 (1983), and Cook v. Gralike, 531 U.S. 510

(2001)); id. at 39-40 (referencing Anderson, Gralike,

and Clements v. Fashing, 457 U.S. 957 (1982)). These

cases offer little aid, however, because they involved

challenges to measures that, unlike a redistricting

plan, expressly imposed direct, tangible burdens on

ballot access or participation in the electoral process.

Nothing in Maryland’s 2011 redistricting legislation

imposes any burden on plaintiffs’ ability to cast their

votes or the ability of their preferred candidates to run

for office.

C. Plaintiffs’ Test Would Impair States’ Ability to Achieve Proportional Representation and Remedy Past Gerrymanders.

Plaintiffs offer assurances that their test permits

proportional districting plans and does not privilege

the status quo ante, but those assurances do not hold

up to inspection. Plaintiffs assert that their test would

not “necessarily” invalidate a districting map that

seeks to achieve proportional representation, Appellees’ Br. 44, but what they mean is such maps will not

be invalidated if they survive strict scrutiny, which “almost always, results in invalidation,” Vieth, 541 U.S. at

9

294 (plurality op.). They further suggest that, under

their test, any hope of averting strict scrutiny of “every

redistricting map” may necessitate the future establishment of unspecified “safe-harbors.” Appellees’ Br.

44. But plaintiffs offer no principled reason why those

“safe-harbors” would be necessary or justifiable if, as

they contend, their test is currently suitable and manageable. Plaintiffs seek to reassure the Court that under the district court’s test “the State may continue to

use data concerning citizens’ voting histories and party

affiliations,” id. at 44, but they cannot account for the

district court’s judgment prohibiting any consideration

of “how citizens are registered to vote or have voted in

the past or to what political party they belong,” J.S.

App. 79a. Taken together, plaintiffs’ assertions confirm

that their test would preclude proportional maps of the

type this Court approved in Gaffney and Easley v.

Cromartie, 532 U.S. 234 (2001).

Plaintiffs also contend that the district court’s test

does not require reference to the prior district, but in

support they merely repeat their abridged Gingles formulation, Appellees’ Br. 45-46, which the district court

did not adopt or reference. Plaintiffs concede that “the

focus below was on . . . the immediately prior district,”

but they insist that it was only to prove that “Republican voters were capable of forming the majority of a

reasonably drawn district in the area.” Id. at 46. The

record demonstrates otherwise. Plaintiffs’ expert used

comparisons to the 2002 version of the Sixth District

as the “benchmark” to assess the intent of the 2011

mapdrawers, J.A. 772, 773; test the extent to which the

10

2011 district exhibited respect for traditional districting principles, J.A. 775; evaluate alternative plans that

were not adopted, J.A. 1088; and demonstrate the merits of the expert’s own proposed alternative district,

J.A. 776. Plaintiffs offer nothing to contradict the district court’s reliance on the prior district as the measure for the First Amendment violations found. See J.S.

App. 53a-54a, 61a-63a, 73a-75a. Nor have they refuted

the likely consequence: the district court’s test would

impair states’ ability to cure a previous gerrymander.

Nor do plaintiffs even attempt to refute the result

their standard would yield whenever legislators faced

a choice between equally commendable maps, one

favoring the majority party and the other favoring

the minority party. See Appellants’ Br. 42-43 (citing

Benisek v. Lamone, No. 17-333, oral argument Tr. 1415 (Justice Alito’s hypothetical question)). Evidently,

plaintiffs concede that their standard would compel

legislators to choose the map favoring the minority

party, lest the redistricting plan be found to violate

some voters’ representational or associational rights.

They do not deny that their standard would give rise

to competing and contradictory claims of partisan gerrymandering if a redistricting plan changed the political orientation of some districts from Democratic to

Republican and flipped other districts in the opposite

direction. See Appellants’ Br. 42.

11

D. Plaintiffs’ Test Fails to Account for the

People’s Adoption of the Redistricting

Plan in the Referendum.

Plaintiffs do not acknowledge that the challenged

redistricting legislation was “adopted by the people,”

Md. Const. art. XVI, § 5(b), by overwhelming vote. But

this Court has long recognized “ ‘the referendum as

part of the legislative power for the purpose of apportionment, where so ordained by the state constitutions

and laws.’ ” Arizona State Legislature, 135 S. Ct. at

2666 (quoting Ohio ex rel. Davis v. Hildebrant, 241 U.S.

565, 569 (1916)); see id. at 2668 (“[R]edistricting is a

legislative function, to be performed in accordance

with the State’s prescriptions for lawmaking, which

may include the referendum[.]”). If a partisan gerrymandering standard includes an element of legislative

intent, as the plaintiffs’ does, then it can hardly constitute a valid analysis if it fails to consider the intent of

the people who adopted the redistricting legislation in

the referendum. Yet, the plaintiffs’ test, adopted by the

district court, does not consider the referendum at all.

Plaintiffs argue that “[i]t would not cure an Equal

Protection violation to ratify a racial gerrymander in a

statewide referendum,” Appellees’ Br. 33, but they are

not asserting an equal protection violation or a racial

gerrymandering claim. They are maintaining a First

Amendment partisan gerrymandering claim that purports to remedy a “practice [that] enables politicians to

entrench themselves in power against the people’s

will.” Gill v. Whitford, 138 S. Ct. 1916, 1935 (2018) (Kagan, J., concurring). The test for adjudicating such a

12

claim cannot be limited, precise, clear, manageable,

politically neutral, and reliably fair if it fails to

acknowledge the “people’s will,” as expressed by more

than 1.5 million votes cast in the referendum. The

First Amendment retaliation test here fails to account

for the referendum at all and, as explained previously,

is incapable of doing so. Appellants’ Br. 48-50.

Unable to explain how their theory works in light

of the referendum, plaintiffs choose to malign its validity. They suggest that there is some question “whether,

as a factual matter, voters actually understood what

they were being asked to approve,” Appellees’ Br. 34.

But plaintiffs did not seek to litigate that question below. See Dkt. 1, 11, 44, 177-1. A court cannot assume

that more than 1.5 million voters misunderstood what

they were doing when they voted in favor of the redistricting plan.

This Court has rejected reliance on a mere “possibility that voters will be confused as to the meaning of ”

what appears on the ballot. Washington State Grange

v. Washington State Republican Party, 552 U.S. 442,

454 (2008). Absent proof, an “assertion that voters will

misinterpret’’ the ballot “is sheer speculation” that

“ ‘depends upon the belief that voters can be “misled,” ’ ”

whereas this Court’s “ ‘cases reflect a greater faith in

the ability of individual voters to inform themselves

about campaign issues.’ ” Id. (citations omitted). This

Court presumes “the vast majority of the electorate not

only is literate but is informed on a day-to-day basis

about events and issues that affect election choices.”

Anderson, 460 U.S. at 797. The Court has also

13

recognized that “explanatory materials mailed to voters,” such as explanatory notices that were mailed to

each registered Maryland voter prior to the 2012 referendum pursuant to statute, Md. Code Ann., Elec.

Law § 7-105(b), constitute measures that “eliminate

any real threat of voter confusion.” Washington State

Grange, 552 U.S. at 456. As in Washington State

Grange, plaintiffs’ attempt to denigrate the referendum “rests on factual assumptions about voter confusion” and “fails for the same reason: In the absence of

evidence, we cannot assume that [a state’s] voters will

be misled.” 552 U.S. at 457.

The only “evidence” of voter confusion cited by

plaintiffs is an answer to a question posed to the

State’s expert witness, Dr. Allan Lichtman, more than

4½ years after the referendum vote, Appellees’ Br. 34,

but the question did not mention that it was about the

referendum. Instead, plaintiffs’ counsel presented

what the attorney described as “one page with one sentence,” without indicating that it was the ballot language for the referendum, and asked the witness if he

“recognized the sentence.” Dkt. 177-49, Tr. 174:16-17.

Understandably, the witness answered, “I have no idea

what it is. It seems to be sitting in isolation.” Tr. 20-21.

Later in the deposition, when asked whether the manner of the referendum question’s presentation on the

ballot “present[ed] any problem,” Tr. 178:14-15, Dr.

Lichtman answered, “No, this was all over the press. It

was a big issue. And, certainly, if people believed that

they were being retaliated against for their political

views, this was quite a unique and clear forum to

14

express that.” Tr. 178:18-179:1. This testimony is by no

means evidence of voter confusion about the 2012 referendum.

II.

THE DISTRICT COURT FAILED TO ADHERE TO

THE REQUIREMENTS FOR DECIDING MOTIONS

FOR SUMMARY JUDGMENT.

The district court’s disposition of the parties’

cross-motions for summary judgment involved more

serious departures from the summary judgment standard than those that required both reversal of the

ruling on cross-motions for summary judgment and

remand for trial in Hunt v. Cromartie, 526 U.S. 541

(1999). See Appellants’ Br. 50-58. Plaintiffs do not

acknowledge Hunt but, instead, offer three sets of

counterarguments, each erroneous. First, they argue

that the State’s pursuit of a cross-motion for summary

judgment constituted a waiver of trial, Appellees’ Br.

48-50, a notion that contradicts this Court’s resolution

of Hunt and its ensuing trial. See Easley, 532 U.S. 234.

Second, they argue that there are no genuine issues of

material fact, Appellees’ Br. 50-52, but their argument

depends on discounting, disbelieving, or disregarding

altogether evidence and inferences favoring the State,

which a court may not do, as explained in Hunt. Finally, plaintiffs argue, based on inapposite lower court

decisions, that the district court was free to rely upon,

and treat as “undisputed,” evidence that was subject to

unaddressed evidentiary objections, and that, in any

case, the evidence was unobjectionable. Appellees’ Br.

52-54. This Court should reject all of their arguments.

15

A. A Cross-Motion for Summary Judgment

Is Not a Waiver of Trial.

Plaintiffs argue that “the State has waived [the]

argument” that the district court “improperly ‘resolve[ed] disputed facts pertaining to multiple elements of plaintiffs’ claims,’ ” “by not raising it below”

and because the cross-motion for summary judgment

“did not oppose [plaintiffs’] motion for summary judgment by asserting that there were genuine disputes

necessitating a trial.” Appellees’ Br. 48. Their argument misunderstands both the nature of an appeal

and the nature of a cross-motion for summary judgment.

A motion for summary judgment “is not a waiver

of the movant’s right to a trial—or to argue that factual

disputes warrant a trial—in the event the court finds

the motion wanting,” and “[i]t is not a concession that

the same facts might warrant judgment against the

movant, or that the movant could marshal no additional evidence or arguments in opposition to the prospect of such an adverse judgment.” Hotel 71 Mezz

Lender LLC v. National Ret. Fund, 778 F.3d 593, 602,

603 (7th Cir. 2015) (citations omitted). “[D]enying the

motion normally will leave the movant in essentially

the same position, procedurally, that it would have

been in had it not requested summary judgment in the

first instance.” Id. at 603. “The principle is the same if

both parties move for summary judgment.” Market

Street Assocs. Ltd. P’ship v. Frey, 941 F.2d 588, 590 (7th

Cir. 1991).

16

As previously explained, Br. in Opp. to Motion to

Affirm 11-13, plaintiffs are also wrong in suggesting

that the cross-motions should be treated as the equivalent of “submission of the dispute as a ‘case ready for

decision on the merits,’ ” Appellees’ Br. 49. “The filing

of cross motions for summary judgment must be distinguished from the case in which the parties stipulate

that the judge may enter final judgment on the record

compiled in the summary judgment proceedings.” Market Street Assocs., 941 F.2d at 590 (citing cases).

Though some appellate courts have opined that, in the

absence of such a stipulation, a submission of the case

for judgment on the papers may be inferred from the

record, “[w]hen determining whether this was the path

taken by the parties in non-jury cases,” the court must

“inquire into the intentions of the parties and the district court judge, as evidenced by the record on appeal.”

García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638,

644 (1st Cir. 2000) (citing cases from other circuits).

Here the record discloses no such intention. See Br. in

Opp. to Motion to Affirm 12-13. Plaintiffs’ argument

that such an intent can be inferred from an agreement

to forgo an evidentiary hearing at the preliminary injunction stage, Appellees’ Br. 50, misunderstands a

preliminary injunction motion. Because the movant

bears the burden of presenting evidence sufficient to

satisfy the four factors of the preliminary injunction

standard, Winter v. Natural Res. Def. Council, Inc., 555

U.S. 7, 20 (2008), it is generally in only the movant’s

interest to request an evidentiary hearing. Forgoing

the typically abbreviated evidentiary hearing on a

17

motion for preliminary injunction cannot constitute a

waiver of trial.

B. Genuine Disputes of Material Fact Preclude Granting Summary Judgment to

Plaintiffs.

The lengths to which plaintiffs go to characterize

the record as containing no material disputes of fact

demonstrate that they, like the district court, fail to

abide by this Court’s teachings in Hunt.1 When plaintiffs claim there is “no evidence” to contradict their positions, what they mean is that there is such evidence,

but they and the district court prefer to disregard it,

treat it as not credible, assign it less weight, or refuse

to draw from it a reasonable inference that would favor

the State. But none of those options are available to a

court adjudicating a motion for summary judgment.

Hunt, 526 U.S. at 552.

Perhaps the best illustration is plaintiffs’ insistence that “there is literally no evidence to support” the

conclusion that the configuration of the Sixth District

was “solely” driven by the State’s interest in having the

“I-270 corridor economic region” represented in a

1

Plaintiffs have no support in the record; they assert that

the State “admitted” that “Republican voters suffered a ‘disadvantage in the ability to elect a candidate of [their choice],’ ” Appellees’ Br. 48-49 (citing Dkt. 186-1 at 39), but the supposed

“admission” they quote is merely a description of what plaintiffs

allege.

18

single district.2 Appellees’ Br. 51. First, no factor

“solely” accounts for the district’s boundaries; rather,

changes elsewhere in Maryland had a profound impact

on the drawing of the Sixth District. See Appellants’ Br.

11-12, 14. For example, eliminating the Bay Bridge

crossing necessitated extending the northern part of

the First District westward into areas formerly within

the Sixth District. However, the record undeniably

shows that voters who attended the GRAC’s public

hearings expressed the importance of the I-270 corridor, J.A. 845-47, as did contemporaneous reports in media coverage of the redistricting process, J.A. 847; those

concerns were heeded by map-drawers, J.A. 938; 71011. Other sources unconnected to redistricting and this

litigation establish that the I-270 Corridor “provides

an essential connection between the Washington, DC

metropolitan area and central and western Maryland.”

J.A. 838. Moreover, demographic changes in the two

counties connected by I-270, Montgomery and Frederick, made it inevitable that district “borders would

change the most out that 270 Corridor.” J.A. 40 (O’Malley). In the decade prior to the 2010 Census, Montgomery County experienced the most growth of any county,

in absolute numbers, with an increase of 98,436 people,

to reach a total population of 971,777.3 Neighboring

2

Plaintiffs claim that “the I-270 story is simply implausible,”

Appellees’ Br. 15, but for that proposition they cite only the report

of their expert, Dr. Morrison, J.A. 805-09, which is analyzed and

refuted in the report of the State’s expert, Dr. Lichtman, J.A. 83648.

3

See Population Change for Counties in the United States

and for Municipios in Puerto Rico: 2000 to 2010 (CPH-T-1),

19

Frederick County experienced a greater percentage

growth, an increase of 19.5%, to reach a total population of 233,385.4 In light of this evidence, the district

court’s suggestion that the importance of the I-270

Corridor was only “a post-hoc rationalization,” having

“utter implausibility,” J.S. App. 55a, demonstrates that

the court impermissibly “credited appellees’ asserted

inferences over those advanced and supported by appellants.” Hunt, 526 U.S. at 552.

C. The District Court Impermissibly Relied

on Evidence Subject to Unresolved Objections.

No case cited by plaintiffs, Appellees’ Br. 52, contradicts the requirement that “[b]efore ordering summary judgment in a case, a district court . . . must also

rule on evidentiary objections that are material to its

ruling.” Norse v. City of Santa Cruz, 629 F.3d 966, 973

(9th Cir. 2010). Instead, the cited cases differ considerably from the circumstances here. Fielding v.

Tollaksen, 510 F.3d 175 (2d Cir. 2007), did not involve

an evidentiary objection. Hill v. SmithKline Beecham

Corp., 393 F.3d 1111 (10th Cir. 2004), concerned a Rule

56(f ) motion for continuance to pursue discovery before responding to motions for summary judgment. In

Major League Baseball Properties, Inc. v. Salvino Inc.,

542 F.3d 290, 312, 314 (2d Cir. 2008), the appellate

https://www.census.gov/data/tables/time-series/dec/cph-series/cph-t/

cph-t-1.html (last visited Mar. 14, 2019).

4

Id.

20

court found no genuine issue of material fact because,

unlike here, the defendant’s evidentiary objections

conceded that the facts contained in the pertinent records were undisputed. These cases do not excuse the

district court’s reliance on disputed material evidence,

including lay opinion testimony, without ruling on objections to admissibility.

Plaintiffs suggest that their descriptions of unidentified persons’ out-of-court statements were not offered to establish the truth of the matter asserted,

because the statements merely expressed voter sentiment, or state of mind. But declarants’ statements

about sentiment would be relevant only to show why

those declarants felt as they purportedly did. The

“ ‘state-of-mind exception does not permit the witness

to relate any of the declarant’s statements as to why

he held the particular state of mind, or what he might

have believed that would have induced the state of

mind.’ ” United States v. Samaniego, 345 F.3d 1280,

1282 (11th Cir. 2003).

Plaintiffs do not address all of the grounds for the

State’s objections regarding campaign finance reports

analyzed in attorney Micah Stein’s declaration. Comparison of the Stein declaration (J.A. 1206-16) with the

underlying data he analyzed shows why the matter

cries out for expert testimony about its adequacy. For

example, plaintiffs rely on his aggregated totals for the

three counties he analyzed—Garrett, Washington, and

Allegany—for the proposition that post-redistricting

fundraising, as measured by Republican Central Committee receipts, fell during “midterm election years” by

21

more than 12%, and “during presidential election

years” by over 6%. Appellees’ Br. 13 (citing J.A. 1216).

The per-county, disaggregated data, contained in

an exhibit (Dkt. 210-14), tells a different story: In

Garrett County, total receipts did not fall, but increased, each election cycle from pre-redistricting 2010

($6,671) to post-redistricting 2012 ($7,237) to 2014

($8,114). In Washington County, total receipts fell between 2010 ($21,175) and 2012 ($11,228), but then rebounded again in 2014 ($20,228) to regain almost the

same level as 2010 and far higher than 2008 ($14,615).

In Allegany County, total receipts for the pre-redistricting 2010 cycle ($11,541) and post-redistricting

2012 ($11,052), differed by less than $500. Dkt. 210-14,

2. In Frederick County, omitted from Mr. Stein’s analysis, receipts by the Republican Central Committee for

2012 ($23,831) and 2014 ($21,404) exceeded the total

receipts for each of the pre-redistricting cycles of 2010

($10,940) and 2008 ($19,187). Receipts more than doubled between 2010 and the first post-redistricting election in 2012.5 These per-county numbers indicate there

is fair ground for disagreement about what, if any,

meaning can be ascribed to the campaign finance report information.

Plaintiffs also continue to rely on impermissible

lay opinion testimony, including a chart, developed by

5

Frederick County Republican Central Committee Campaign

Reports, MARYLAND CAMPAIGN REPORTING INFORMATION SYSTEM,

https://campaignfinance.maryland.gov/Public/ViewFiledReports

(search Committee Type Party Central Committee, Candidate/

Committee Name Frederick and select Years 2008 through 2014).

22

Mr. Stein, Appellees’ Br. 10, that purports to compare

voting results among precincts that were allegedly retained, removed, or added to the Sixth District, an

analysis that requires manipulation of precinct and

partial precinct data in ways beyond a layperson’s abilities. Plaintiffs do not explain why this evidence was

appropriate for consideration by the district court, nor

why it is appropriate for this Court’s consideration. Appellees’ Br. 52-54. The plaintiffs’ only defense of their

reliance on this inadmissible evidence, see Fed. R. Evid.

702 (J.A. 1249-50; see also Dkt. 215-1), is to suggest

that the State should have disregarded the district

court’s scheduling order and submitted uncontemplated further evidentiary briefing. Appellees’ Br. 18.

But plaintiffs cannot seriously contend that, by moving

to exclude inadmissible lay opinion testimony first offered more than a year after expert discovery had

closed, the State somehow forfeited its opportunity to

counter that testimony. Compare Dkt. 180 (expert discovery closed June 5, 2017) with J.A. 1216 (Stein Affidavit dated July 3, 2018).

III. EQUITABLE PRINCIPLES AND THE PUBLIC INTEREST

PRECLUDE INJUNCTIVE RELIEF.

1. Plaintiffs’ own brief demonstrates how the

State has suffered prejudice from the plaintiffs’ “yearslong delay.” Benisek v. Lamone, 138 S. Ct. at 1944.

Like statutes of limitations, laches is associated with

three forms of prejudice: “‘evidence has been lost,

memories have faded, and witnesses have disappeared.’ ” Midland Funding, LLC v. Johnson, 137 S. Ct.

23

1407, 1418-19 (2017) (Sotomayor, J., dissenting) (citation omitted). Plaintiffs’ delay in bringing their November 2013 suit and then in ultimately amending

their complaint to add their First Amendment retaliation claim in March 2016—4½ years after enactment

of the 2011 redistricting legislation—has resulted in

lost evidence, faded memories, and the loss of state witnesses to other employment.

Prior to the 2016 amended complaint, plaintiffs

had disavowed any reliance “on the reason or intent of

the legislature—partisan or otherwise.” Dkt. 11 ¶ 2.

Consequently, officials and legislators were not on notice of any need to preserve records related to legislative intent. Dkt. 186-1, 50. Governor O’Malley left

office in January 2015. Dkt. 186-1, 50. Due to the

change of administration, many state personnel who

had been involved in redistricting left state service. Id.

By the time plaintiffs undertook discovery after the

2016 amended complaint, officials were asked in depositions to recall details of events that had occurred, in

some instances, nearly six years before. Id. at 49. They

struggled at times to do so. See, e.g., J.A. 197, 198, 199

(Miller); Dkt. 177-8, Tr. 123-24 (Hitchcock).

Plaintiffs have repeatedly sought to capitalize on

the lack of documentation and faded memories, both in

their summary judgment briefing, see, e.g., 177-1, 5-6

(noting Jeanne Hitchcock’s failure to recall), and before

this Court. When they claim that “there is no evidence

that any relevant public comments were actually

taken into account by the mapdrawers,” Appellees’ Br.

4, they are relying on both the lack of documents and

24

faded memories. For example, former GRAC member

Jeanne Hitchcock could recall that GRAC’s map “reflected what we heard” from members of the public who

attended GRAC’s hearings, but when asked about specific alterations made in response to that input, she

did not “have a recollection of that specifically.” Dkt.

177-8, Tr. 124:4-6, 123:4-5. Plaintiffs compound the

prejudice by disregarding testimony of witnesses who

did recall events. For example, Yaakov Weissmann, a

Maryland legislative staffer tasked with drafting the

2011 redistricting map, testified via declaration that

he worked directly with members of the GRAC and

attended public hearings, and that former GRAC

member Jeanne Hitchcock “would join [the staff ]

workgroup [drawing the map] to provide feedback, including feedback from the public hearings and other

stakeholders.”6 J.A. 937, ¶ 7. Plaintiffs chose not to depose Mr. Weissmann. Instead, plaintiffs preferred to

6

Plaintiffs attempt to tie Mr. Weissmann to Eric Hawkins,

a contractor hired by the Congressional delegation. Appellees’ Br.

5. But there is no evidence that Mr. Hawkins ever worked on the

adopted Maryland map. Maryland mapdrawers and decisionmakers rejected the Congressional delegation’s proposed map. J.A.

937, ¶¶ 8, 9. The two e-mails plaintiffs cite, Appellees’ Br. 5 (citing

J.A. 823, 825), establish no such connection. They are unrelated

exchanges between Mr. Hawkins and Jason Gleason, chief of staff

to Representative John Sarbanes. See also Benisek v. Lamone, No.

17-333, Appellees’ Br. 14 n.10. The only correspondence in the

record involving both Mr. Weissmann and Mr. Hawkins (J.A.

1104) shows Mr. Weismann responding to a query from someone

else, forwarding a question by Mr. Hawkins. The email exchange

concerns only minor adjustments made after the GRAC and state

workgroup had introduced the plan to the public. J.A. 1104 (dated

October 18, 2011, after plan was introduced); see also Appellees’

Br. 11.

25

rely on the dearth of surviving documentation and the

inability of some witnesses to recall the details of what

occurred some half-dozen years earlier.

2. Though plaintiffs claim that courts “often”

order a new redistricting map at the end of a decade

before an impending census, they cite only three cases,

one of which is Rucho, No. 18-422, now pending on

appeal. Appellees’ Br. 55 (citing Perez v. Abbott, 267

F. Supp. 3d 750 (W.D. Tex. 2017), rev’d in part, 138

S. Ct. 2305 (2018); Diaz v. Silver, 978 F. Supp. 96

(E.D.N.Y.), aff ’d, 522 U.S. 801 (1997). None of them involved a finding of “plaintiffs’ unnecessary, years-long

delay,” as here, Benisek v. Lamone, 138 U.S. at 1944;

and none of them involved enjoining a plan that had

been used in four prior Congressional elections, as

Maryland’s 2011 plan has been. In Perez, there had

been two prior elections under the enjoined plan. 138

S. Ct. at 2318. In both Perez and Diaz, the injunction

was entered three years before the next census. Id.;

978 F. Supp. 96.

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

26

CONCLUSION

The Court should reverse and vacate the judgment

of the United States District Court for the District of

Maryland.

Respectfully submitted,

BRIAN E. FROSH

Attorney General of Maryland

STEVEN M. SULLIVAN*

Solicitor General

JULIA DOYLE BERNHARDT

Chief of Litigation

SARAH W. RICE

JENNIFER L. KATZ

ANDREA W. TRENTO

Assistant Attorneys General

200 Saint Paul Place

Baltimore, Maryland 21202

ssullivan@oag.state.md.us

(410) 576-6325

Attorneys for Appellants

*Counsel of Record