Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.

No. 21-1271

IN THE

Supreme Court of the United States

TIMOTHY K. MOORE,

IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NORTH

CAROLINA HOUSE OF REPRESENTATIVES, ET AL.,

Petitioners,

v.

REBECCA HARPER, ET AL.,

Respondents.

On Writ of Certiorari To The Supreme Court of North

Carolina

BRIEF OF AMICUS CURIAE MICHAEL L. ROSIN IN

SUPPORT OF RESPONDENTS

PETER K. STRIS

MICHAEL N. DONOFRIO

Counsel of Record

STRIS & MAHER LLP

777 S. Figueroa St., Ste. 3850

Los Angeles, CA 90017

(213) 995-6800

mdonofrio@stris.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT .......................................... 2

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

I.

Constitutional Convention and Ratification ....... 5

II. Districting in the First Congressional

Election ................................................................... 9

III. Congressional Implementation of SingleMember Districting Over Time.......................... 13

A. The Twenty-Seventh Congress................... 13

B. The Thirty-First Congress .......................... 15

C. The Thirty-Seventh, Forty-Second,

Forty-Seventh, Fifty-First, and FiftySixth Congresses .......................................... 17

D. The Sixty-Second Congresses ..................... 19

E. The Seventieth, Seventy-First, SeventySixth and Seventy-Seventh Congresses .... 23

F. The Ninetieth Congress............................... 25

CONCLUSION .................................................................. 32

-i-

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Arizona State Legislature v. Arizona

Independent Redistricting Commission et

al.,

576 U.S. 787 (2015) ...................................................... 2

Branch v. Smith,

538 U.S. 254 (2003) .............................................. 25, 31

Dep’t of Commerce v. Montana,

503 U.S. 442 (1992) .................................................... 24

New York v. United States,

505 U.S. 144 (1991) ................................................ 9, 22

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ............................................ 2, 12

Smiley v. Holm,

285 U.S. 355 (1932) .................................................... 23

Wesberry v. Sanders,

376 U.S. 1 (1964) .................................................... 8, 25

Wood v. Broom,

287 U.S. 1 (1932) ........................................................ 23

Constitutional Provisions

U.S. Const., Article I, § 2.................................................. 9

U.S. Const., Article I, § 4 .................................................. 3

- ii -

Mass. Const. of 1780, Chapter I, § II, Article I ........... 10

Federal Statutes

2 U.S.C. § 2a............................................................... 24, 31

2 U.S.C. § 2c ......................................................... 3, 4, 5, 31

5 Stat. 491 (1842) ................................................... 3, 13, 15

9 Stat. 428 (1850) ............................................................. 17

12 Stat. 353 (1862) ........................................................... 17

12 Stat. 572 (1862) ........................................................... 17

17 Stat. 28 (1872) ....................................................... 18, 23

22 Stat. 5 (1882) ............................................................... 18

26 Stat. 735 (1891) ........................................................... 18

31 Stat. 733 (1901) ........................................................... 18

37 Stat. 13 (1911) ............................................. 3, 19, 20, 22

46 Stat. 21 (1929) ....................................................... 23, 24

54 Stat. 162 (1940) ..................................................... 23, 24

81 Stat. 581 (1967) ........................................................... 28

Legislative Materials

111 Cong. Record 30029 (1965) ...................................... 27

111 Cong. Record 31718 (1965) ................................ 26, 27

- iii -

111 Cong. Record 5080–5101 (1965) .............................. 25

111 Cong. Record 5386 (1965) ........................................ 26

113 Cong. Record 30251 (1967) ...................................... 26

113 Cong. Record 31712 (1967) ................................ 26, 27

113 Cong. Record 31718-20 (1967) ..................... 28, 30, 31

46 Cong. Record 2224 (1911) .......................................... 21

46 Cong. Record 2228 (1911) .......................................... 21

47 Cong. Record 3436 (1911) .................................... 21, 22

47 Cong. Record 3556 (1911) .......................................... 22

47 Cong. Record 673-74 (1911). ...................................... 20

47 Cong. Record 701-2 (1911)................................... 20, 21

47 Cong. Record 704 (1911) ............................................ 21

87 Cong. Record 8051 (1941) .......................................... 24

87 Cong. Record 8056 (1941) .......................................... 25

Apportionment of Representatives in

Congress: Hearings Before the United

States Senate Committee on Commerce,

Subcommitee on H.R. 2665, SeventySeventh Congress, First Session, (G.P.O.

1941). ........................................................................... 23

Cong. Globe, 27th Cong., 2d Sess. (1842) ................ 14, 15

Cong. Globe, 31st Cong., 1st Sess. (1850) ............... 16, 17

- iv -

Cong. Globe, 37th Cong., 2d Sess. (1862)...................... 17

Congressional Redistricting. Hearings before

Subcommittee No. 5 of the Committee on

the Judiciary, House of Representatives,

Eighty-eighth Congress, second session, on

H.R. 699 [and others] ...(1964) ................................. 25

Federal Standards for Congressional

Redistricting, H. Rep No. 89-140 (1965) ................ 26

House Committee on the Census, Message

from the President of the United States

Transmitting a Statement Prepared by the

Director of the Census, H. Rep No. 77-45

(1941) .......................................................................... 24

S. Doc. No. 22-119 (1832) ................................................ 13

Published Authorities

2 The Documentary History of the First

Federal Elections 24 (Merrill Jensen,

Robert A. Becker, and Gordon DenBoer

eds., Wisconsin 1976–1989). ......................... 10, 11, 12

7 The Federal and State Constitutions,

Colonial Charters, and Other Organic

Laws of the States, Territories, and

Colonies Now or Heretofore Forming the

United States of America 3816 (Francis

Newton Thorpe ed., Government Printing

Office 1909)................................................................... 9

-v-

12 Brutus, Letter IV, N.Y. J., Nov. 29, 1787,

reprinted in 14 The Documentary History

of the Ratification of the Constitution 297

(Merrill Jensen et al. eds., 1976). ........................... 8, 9

The Debates in the Several State Conventions

on the Adoption of the Federal

Constitution 27 (Jonathan Elliot ed., 1836). ............ 8

Emanuel Celler, Congressional

Apportionment-Past, Present, and Future,

17 Law & Contemp. Probs. 268 (1952) .................... 25

Herman V. Ames, The Proposed Amendments

to the Constitution Of The United States

During the First Century of Its History

(GPO 1897). ................................................................ 13

Kenneth C. Martis, The Historical Atlas of

United States Congressional Districts,

1789–1983, (Free Press 1982) .................................. 11

2 The Records of the Federal Convention of

1787 (Max Farrand ed., Yale rev. ed. 1937) ...... 5, 6, 7

9 The Statutes at Large (William Waller

Hening ed., 1822) ....................................................... 10

Stephen Calabrese, An Explanation of the

Continuing Federal Government Mandate

of Single Member Congressional Districts,

130 Public Choice 23 (Jan. 2007). ............................. 16

- vi -

INTEREST OF AMICUS

Amicus curiae Michael L. Rosin is an

independent scholar who has conducted extensive

historical research and analysis about the interstate

apportionment of the United States House of

Representatives. 1 See, e.g., The Five-Fifths Rule and the

Unconstitutional Presidential Election of 1916, 46(2)

HISTORICAL METHODS 57 (2013); The Three-Fifths Rule

and the Presidential Elections of 1800 and 1824, 15(1)

UNIVERSITY OF ST. THOMAS LAW JOURNAL 159 (2018).

For a complete listing of his published scholarship, see

https://orcid.org/0000-0001-5029-3073.

Mr.

Rosin’s

research

on

interstate

apportionment—in particular his careful review of the

deliberations of the Thirty-Ninth Congress—formed the

basis of a merits-stage amicus brief in Trump v. New

York. See Brief of Amicus Curiae Michael L. Rosin,

Trump v. New York, No. 20-366 (Nov. 13, 2020).

He has also conducted extensiveresearch on the

Electoral College. Based on that work, Mr. Rosin

submitted petition-stage and merits-stage amicus briefs

in Chiafalo et al. v. Washington and Colorado

Department of State v. Baca et al. See Brief of Amici

Curiae Michael L. Rosin et al., Chiafalo, No. 19-465 &

Baca, No. 19-518 (Mar. 6, 2020); Brief of Amici Curiae

1

All parties have filed written consents to the filing of

briefs by amici curiae with the Clerk of the Court. No

party nor party’s counsel authored this brief in whole or

in part, nor made a monetary contribution intended to

fund its preparation or submission. No person other than

amicus or his counsel made a monetary contribution to its

preparation or submission.

-1-

Michael L. Rosin & David G. Post in Support of Petition

for Certiorari, Chiafalo, No. 19-465 & Baca, No. 19-518

(Nov. 6, 2019). He also submitted amicus briefs in

Chiafalo and Baca to the Washington Supreme Court and

Tenth Circuit Court of Appeals, respectively.

As Congress attended to the interstate

apportionment of the House it had the opportunity to

consider issues related to districting within the states, as

it did most especially in 1842, 1872, and 1911. Drawing on

his detailed research of this history, Mr. Rosin seeks to

assist the Court by marshaling key historical evidence

concerning Congress’s exercise of its power under the

Elections Clause.

SUMMARY OF ARGUMENT

On the surface, this case looks like the next step in

the precedential line that currently ends with Rucho v.

Common Cause, 139 S. Ct. 2484 (2019), but it is more

properly viewed as a successor to Arizona State

Legislature v. Arizona Independent Redistricting

Commission et al., 576 U.S. 787 (2015) [hereinafter

AIRC]. Rucho concerned the content of a congressional

districting plan. See 139 S. Ct. at 2506-07 (“We conclude

that partisan gerrymandering claims present political

questions beyond the reach of the federal courts.”). This

case, like AIRC, is about the process for adopting one.

In AIRC, the Court held that a congressional

districting plan drawn by a state’s independent districting

commission (and not its legislature) is valid and can be

implemented by the state. See 576 U.S. at 811, 824.

This case requires the Court to answer a question

about the other end of the districting process: whether a

congressional districting plan drawn by a state legislature

-2-

can be subject to review and revision by the state’s

judiciary under state law.

This question revolves around the powers granted

to Congress by the Elections Clause:

The times, places and manner of holding

elections for Senators and Representatives,

shall be prescribed in each state by the

legislature thereof; but the Congress may at

any time by law make or alter such

regulations, except as to the places of

choosing Senators. U.S. CONST., art. I, § 4

(emphasis added).

Petitioners assert that “[t]he Court’s analysis in

this case must begin with the Constitution’s text, and it

can end there as well.” Pet. Br. at 13 (emphasis added).

But the second half of the Elections Clause empowers

Congress to act, making the genesis, process, and

substance of congressional action over time critical to

assessing the scope of any actor’s Elections Clause

authority. Neither petitioners nor their amici undertake

this analysis.

Congress first exercised its Elections Clause

power with respect to districting in 1842 when it required

states to elect Representatives from single member

districts. 5 Stat. 491 (1842). Concerned that a

gerrymandered legislature might draw gerrymandered

House districts, in 1911 Congress adopted statutory

language clarifying that the power to district is not limited

to state legislatures. See 37 Stat. 13, 14 (1911). Its most

recent exercise of its Elections Clause authority yielded

the following provision, now codified as 2 U.S.C. § 2c

(1967):

-3-

In each State entitled in the Ninetyfirst Congress or in any subsequent

Congress thereafter to more than one

Representative under an apportionment

made pursuant to the provisions of

subsection (a) of section 22 of the Act of

June 18, 1929, there shall be established by

law a number of districts equal to the

number of Representatives to which such

State is so entitled, and Representatives

shall be elected only from districts so

established, no district to elect more than

one Representative. 81 Stat. 581 (1967)

(emphasis added; cleaned up).

The plain text of the Elections Clause gives

Congress the authority to declare that the requisite

number of House districts “shall be established by law.”

Petitioners’ position relies on and requires the illogical

and counter-textual view that the first part of the

Elections Clause prevents Congress from passing a law

that authorizes actors other than a state legislature to

participate, even though the second part of the Clause

unequivocally says Congress “may make or alter such

regulations” (other than the “places of choosing

Senators”). The most logical interpretation and

application of the Elections Clause is that it gave

Congress the authority to do what it did by enacting 2

U.S.C. § 2c: enabling states to create districting processes

not limited to their legislatures.

The historical record confirms the absurdity of this

reading. First, the history of both the Constitutional

Convention and state ratifying conventions demonstrate

that the Framers rejected giving state legislatures

exclusive control over elections. Next, the historical

-4-

context in which the states were operating as they

approached the first House elections in 1788-1789 nullifies

the claim that “there is no evidence that anyone suggested

the judiciary should draw congressional districts.”

Amicus Curiae Br. of the Am. Legislative Exch. Council

at 9 (Sept. 6, 2022) [hereinafter ALEC Br.].

Finally, as explained in Part III, throughout our

history Congress has revisited the interstate

apportionment of the House repeatedly, providing natural

opportunities to address intrastate districting. The

debates and the outcomes each Congress reached—

beginning in 1842 and culminating in the 1967 passage of

2 U.S.C. § 2c—together show that Congress consistently

understood that the Elections Clause empowers it to

authorize states, and not just state legislatures, to

regulate elections by law.

In sum, the historical record shows that North

Carolina’s actions here—including its enactment of

statutes allowing for judicial review of districting plans,

and its courts’ intervention—are consistent with the

Elections Clause and authorized by 2 U.S.C. § 2c.

ARGUMENT

I. Constitutional Convention and Ratification

After debate and discussion about the Elections

Clause, the Constitutional Convention and the states’

ratifying conventions ultimately accepted James

Madison’s argument that “the Legislatures of the States

ought not to have the uncontrolled right of regulating the

times places & manner of holding elections.” 2 The

Records of the Federal Convention of 1787, 240 (Max

Farrand ed., Yale rev. ed. 1937) [hereinafter Farrand].

Along the way, the notion that state legislatures did (or

-5-

should) possess unchecked power over elections was

raised and rejected.

During the Constitutional Convention,

Committee of Detail had drafted the following text:

the

The Times and Places and the

Manner of holding the Elections of the

Members of each House shall be prescribed

by the Legislature of each State; but their

Provisions concerning them may, at any

Time, be altered (or superseded) by the

Legislature of the United States. Id. at 165. 2

The Convention quickly accepted the first part of

this clause. Id. at 239. The second part, however, faced

some resistance:

Mr. Pinkney & Mr. Rutlidge moved

to strike out the remaining part viz “but

their provisions concerning them may at

any time be altered by the Legislature of

the United States.” The States they

contended could & must be relied on in such

cases. Id. at 240.

Madison rebuffed that view, explaining why the

Elections Clause should not, and does not, confer an

“uncontrolled right” on state legislatures alone:

2

Farrand writes “Madison copied the report into his

Debates,” 2 Farrand at 177 n.3, and presented its text as

follows: “The times and places and [the] manner of

holding the elections of the members of each House shall

be prescribed by the Legislature of each State; but their

provisions concerning them may, at any time, be altered

by the Legislature of the United States.”

-6-

The necessity of a Genl. Govt.

supposes that the State Legislatures will

sometimes fail or refuse to consult the

common interest at the expense of their

local conveniency or prejudices. The policy

of referring the appointment of the House

of Representatives to the people and not to

the Legislatures of the States, supposes

that the result will be somewhat influenced

by the mode, This view of the question

seems to decide that the Legislatures of the

States ought not to have the uncontrouled

right of regulating the times places &

manner of holding elections. Id.

As the discussion continued, Madison honed in on

the central issue in this case—which government actor(s)

should have authority over the House districting process.

He identified critical questions like whether the state

“should be divided into districts or all meet at one place,

shd all vote for all the representatives; or all in a district

vote for a number allotted to the district; these & many

other points would depend on the Legislatures. and might

materially affect the appointments.” Id. at 240–41

(emphasis added). And he recognized the potential pitfalls

of giving state legislatures the unchecked power

Petitioners claim they have:

Whenever the State Legislatures

had a favorite measure to carry, they would

take care so to mould their regulations as to

favor the candidates they wished to

succeed. Besides, the inequality of the

Representation in the Legislatures of

particular States, would produce a like

inequality in their representation in the

-7-

Natl. Legislature, as it was presumable

that the Counties having the power in the

former case would secure it to themselves in

the latter. Id. at 241 (emphasis added).

Madison and the Convention perceived a fatal

defect in the approach now promoted by Petitioners:

Petitioners’ view would allow an unfairly apportioned

state legislature to unfairly apportion its House

districts—without any means of redress. That’s why their

view did not carry the day in the ratification process. As

this Court noted in Wesberry v. Sanders, “[s]peakers at

the [state] ratifying conventions emphasized that the

House of Representatives was meant to be free of the

malapportionment then existing in some of the state

legislatures . . . and argued that the power given Congress

in Art. I, 4, was meant to be used to vindicate the people’s

right to equality of representation in the House.”

Wesberry v. Sanders, 376 U.S. 1, 16 (1964). For example,

at the Massachusetts Convention Theophilus Parsons

echoed Madison’s observation that a malapportioned

legislature “might make an unequal and partial division of

the states into districts for the election of

representatives.” The Debates in the Several State

Conventions on the Adoption of the Federal Constitution

27 (Jonathan Elliot ed., 1836) [hereinafter Elliot].

Suggestions to limit Congress’s authority were

raised but not adopted. One concern, for example, was

that the “proposed Congress may make the whole state

one district.” 12 Brutus, Letter IV, N.Y. J., Nov. 29, 1787,

reprinted in 14 The Documentary History of the

Ratification of the Constitution 297 (Merrill Jensen et al.

eds., 1976). At the New York Convention, Melancton

Smith and John Lansing suggested that Congress’s

power be curtailed so that it could mandate election by

-8-

district but not on an at-large basis. 1 Elliot at 327–28.

But that change was not made. Id. at 328.

In the end, the Convention and the ratification

process accepted Madison’s position and included the

second part of the Elections Clause, giving Congress

ongoing authority to alter state processes for choosing

House representatives. This allocation of power reflects

the foundational principles that “[t]he Constitution

divides authority between federal and state governments

for the protection of individuals” and “federalism secures

to citizens the liberties that derive from the diffusion of

sovereign power.” New York v. United States, 505 U.S.

144, 181 (1991) (cleaned up).

II. Districting in the First Congressional Election

Districting for the First Congressional Election

was a rushed and novel affair. As states prepared to elect

the First Congress in 1788-1789, drawing a fixed number

of legislative districts was an unfamiliar task for ten of the

eleven states to which multiple representatives were

apportioned in the First Congress. 3 At that time, Virginia

was the only state with functional experience at this task.

Specifically, the Virginia Senate was the only state

legislative body at the time whose state constitutional

apportionment began with a fixed total number of seats

that were then apportioned into single-member districts.

See Virginia Constitution of 1776 in 7 The Federal and

State Constitutions, Colonial Charters, and Other

Organic Laws of the States, Territories, and Colonies

Now or Heretofore Forming the United States of America

3816 (Francis Newton Thorpe ed., Government Printing

Office 1909) [hereinafter Thorpe]. Virginia’s 1776

3

For the initial apportionment see U.S. Const., art. I, § 2,

cl. 3.

-9-

“Ordinance to arrange the counties into districts, for

electing senators” formed 24 single member senate

districts from the state’s 76 counties. 9 The Statutes at

Large, 128–30 (William Waller Hening ed., 1822),

available at https://babel.hathitrust.org/cgi/pt?id=hvd.h

w2scx&view=1up&seq=136 (last visited Oct. 20, 2022).

The other ten states did not have any experience to

draw on. 4 They had to learn on the job, and do so quickly.

Four of them—Connecticut, New Hampshire,

New Jersey, and Pennsylvania—elected multiple

representatives on a statewide basis with districts playing

no role. 5 Virginia and the other six employed districts:

•

Massachusetts, New York, and South

Carolina, elected their representatives

from single-member districts without

residence requirements. 6

4

Massachusetts’ 1780 Constitution apportioned a fixed

total of 40 state senators among thirteen districts, twelve

of which were formed from individual counties with the

thirteenth formed by combining Dukes (Martha’s

Vineyard) and Nantucket Counties, a much simpler task

than Virginia’s senate apportionment. See Mass. Const. of

1780, Ch. I, Sec. II, Art. I, in 3 Thorpe, at 1895.

5

For Connecticut see, 2 The Documentary History of the

First Federal Elections 24 (Merrill Jensen, Robert A.

Becker, and Gordon DenBoer eds., Wisconsin 1976–1989).

(Hereinafter cited as DHFFE.) For New Hampshire see

1 id. at 790. For New Jersey see 3 id. at 16–17. For

Pennsylvania see 1 id. at 300.

6

For Massachusetts see id. at 509–10. For New York see

3 id. at 361. For South Carolina see 1 id. at 167.

- 10 -

•

North Carolina and Virginia, elected their

representatives from single member

districts with a requirement that the

representatives be an inhabitant of the

district. 7

•

Georgia and Maryland, elected their

representatives on a statewide basis but

drew districts to impose a residence

requirement. 8

Only one of those states divided an existing

political subdivision between House districts. New York’s

geography forced it to divide its largest county once it

decided to elect its six representatives by district. Albany

County, with roughly thirty percent of its population,

straddled the Hudson River. Only lightly populated

Montgomery County, with less than one-fourth Albany

County’s population, lay to its west. The bulk of Albany

County lay west of the Hudson River. That portion was

joined with Montgomery County to form one district. The

part of Albany County east of the Hudson was joined with

Clinton, Columbia, and Washington counties and other

parts of New York to form another district. 3 id. at 361. 9

Every other state that drew districts left all of their

counties undivided as did New York with every county

other than Albany County.

7

For North Carolina see 4 id. at 347. For Virginia see 2 id.

at 293–94.

8

For Georgia see id. at 457. For Maryland see id. at 138.

9

For the districtings in the other states see the state by

state citations just given or Kenneth C. Martis, The

Historical Atlas of United States Congressional

Districts, 1789–1983, 224, 234, 235, 247, 256, 267, 274 (Free

Press 1982).

- 11 -

Even Delaware, which elected a single

representative, utilized its three counties as districts for

electing its lone representative. Its 1788 statute gave each

voter two votes for candidates “one of whom at least shall

not be an Inhabitant of the same County with

themselves.” 2 DHFFE at 71.

In sum, districting was a novel task for all but one

state legislature in 1788. For the most part, those states

opting to draw districts for their House elections sensibly

and understandably chose a path of least resistance, using

existing county lines (other than the New York exception

described above).

Petitioners and their amici ignore these historical

facts and overplay this Court’s observation in Rucho that

“there is no evidence that anyone suggested the judiciary

should draw congressional districts. ‘Nor was there any

indication that the Framers had ever heard of courts

doing such a thing.’” See, e.g., ALEC Br. at 9 (quoting

Rucho, 139 S. Ct. at 2496). Given the historical context and

the novelty of apportioning representatives for the First

Congress, it is hardly surprising that the courts had yet

to weigh in. Therefore, the absence of robust discussion

around the judiciary’s role is not probative of an

affirmative intent to completely exclude the courts from

the process.

Viewed holistically, the historical record undercuts

Petitioners’ enthusiastic embrace of the notion that the

Framers somehow implicitly established that the

judiciary had no role. And as explained below,

Congressional action for most of the Nation’s history

reflects a settled understanding that ordinary state

judicial review would be part of state districting

processes.

- 12 -

III. Congressional Implementation

Member Districting Over Time

of

Single-

A. The Twenty-Seventh Congress

As early as 1800, Rep. John Nicholas [DR-VA]

proposed a constitutional amendment requiring that

representatives be elected from single member districts.

See Herman V. Ames, The Proposed Amendments to the

Constitution Of The United States During the First

Century of Its History 56 (GPO 1897). 10 Between 1816 and

1826, twenty-two such amendments were proposed. Id. at

57.

Eventually, the Whig leadership in the TwentySeventh Congress recognized that a constitutional

amendment was unnecessary. Exercising its Elections

Clause power, Congress included a single-member

district requirement in the Apportionment Act of 1842. 5

Stat. 491 (1842).

The process began on April 27, 1842, when the

House took up a bill expanding the House to 306

members. Committee of Elections member William

Halsted, a New Jersey Whig, proposed the following

addition:

That each State shall be divided, by the Legislature

thereof, into as many districts, composed of

contiguous territory as shall be equal to the

number of Representatives to which said State

may be entitled in the House of Representatives of

the Congress of the United States; and that each

10

In 1832 Daniel Webster explained that the

Representation Clause did not mandate election by

district. S. Doc. No. 22-119 at 8 (1832) (“It goes not at all

into these subdivisions of the population of a State.”).

- 13 -

of the said districts shall elect one Representative.

Cong. Globe, 27th Cong., 2d Sess., 446 (1842)

(emphasis added).

Immediately thereafter, the House agreed to

South Carolina Democrat John Campbell’s proposal

which, among other things, deleted Halsted’s explicit

reference to state legislatures:

That in every case where a State is entitled to more

than one Representative, the number to which

each State shall be entitled under this

apportionment shall be elected by districts

composed of contiguous territory equal in number

to the number of Representatives to which said

States may be entitled; no one district electing

more than one Representative. Id.

The House spent most of the next five days

debating whether Congress had the power to require

House election by district, whether it had to draw the

districts itself, or whether it could leave that matter to the

states and, if the latter, how Congress would enforce such

a mandate. 11

Ultimately the House approved the bill calling for

306 members elected from single-member districts,

containing the Campbell language quoted above. Cong.

Globe, 27th Cong., 2d Sess., 471 (1842).

In the Senate, the Judiciary Committee proposed

a fine-grained but significant change, referencing

districts made “under the laws thereof”:

11

For the debates see Cong. Globe, 27th Cong., 2d Sess.,

at 446–48, 451–54, 463–65, 469–71, App’x 316–22, 340–44,

347–54, 360–62, 371–73, 379–82, 397–400, 407–09 (1842).

- 14 -

That in every case when a State is entitled to more

than one Representative, and the election in such

State shall, under the laws thereof, be made by

districts, such districts shall be composed of

contiguous territory, and each shall contain a

representative population equal to the number

which, by the existing ratio, shall be required for

one member, as nearly as may be; and no one

district shall elect more than one member. Id. at

496 (emphasis added).

The Committee eliminated the single-member

district mandate from the House version and added text

mandating that any state whose laws called for electing

representatives by single-member districts must choose

them from fairly apportioned districts. But the Senate

soon rejected this conditional proposal, Id. at 563, 12

leaving Campbell’s passive voice, text mandating singlemember districts in place. 5 Stat. 491 (1842).

In 1842 Congress could have explicitly allocated

the power to district a state to the state’s legislature (as

in Halsted’s proposal) but it chose not to. Instead, federal

law authorized districts made pursuant to “the laws” of

each State, with certain conditions set by Congress.

B. The Thirty-First Congress

In 1850, during his final speech to the Senate, John

Calhoun highlighted the growing population disparity

12

For the debate see Cong. Globe, 27th Cong., 2d Sess.,

at 551, 561-63 (1842). For the full Senate debate on the

single-member district provision see id. at 555–57, 561–

63, 566–68, 571–74, 576–79, 583–85, 588–91, 595–98, 601,

App’x 422–24, 449–51, 457–60, 465–75, 490–93, 512–13,

583–86, 495–96, 748–50, 788–90, 792–94.

- 15 -

between the free states and the slave states and hinted at

the very real possibility that congressional action on a

post-census apportionment bill might reach an impasse if

the census data happened to break on sectional lines.

Cong. Globe, 31st Cong., 1st Sess., 451 (1850). 13

Concerned that the 1850 census was already

behind schedule, on April 30, 1850, Representative

Samuel Vinton [Whig-OH] proposed that the census bill

under consideration be made permanent, remaining in

force until altered or repealed. Id. at 862. He also

suggested choosing a size—ultimately 233—for the next

House, making that size permanent until altered or

repealed. Id. at 862–63.

Vinton understood his proposal to have two key

advantages. “The first and greatest of all is, it completes

the organization of the Government, and puts it beyond

the reach of accident or faction from this cause.” Id. at 863.

The second was that the new apportionment could be

transmitted to the states while their legislatures were still

in session, avoiding the need for special legislative

sessions to draw districts as had been necessary in many

states following the apportionment of 1842. Id. One recent

commentator has suggested “[t]he Democrats in

Congress forced the district provision of the 1842 law to

be dropped from the 1850 law.” Stephen Calabrese, An

Explanation of the Continuing Federal Government

Mandate of Single Member Congressional Districts, 130

Public Choice 23, 35 (Jan. 2007). To the contrary, there

simply was no debate on districting in the proceedings on

this census bill (which President Taylor signed into law on

13

David Kaufman, a Texas Democrat, made exactly this

argument during the House debate. Cong. Globe, 31st

Cong., 1st Sess., 927 (1850).

- 16 -

May 23—just 23 days after Vinton’s initial proposal). 9

Stat. 428 (1850). In fact, there was little debate on much

of anything other than the census and its contents. See

Cong. Globe, 31st Cong., 1st Sess., 855–63, 923–30, 939–

40, 989–94 (1850). Consequently, there was neither debate

nor statutory text addressing the power to district.

C. The Thirty-Seventh, Forty-Second, FortySeventh, Fifty-First, and Fifty-Sixth Congresses

Between 1862 and 1901 Congress continued to

expand the size of the House—ready-made opportunities

to address the districting issue.

For example, on June 24, 1862, Election

Committee Chairman Henry Dawes [R-MA] reported

H.R. 525 to the House floor. Cong. Globe, 37th Cong., 2d

Sess., 2910 (1862). He told his colleagues “[t]he object of

the bill is to carry out precisely the law of 1842. . . . It

provides merely that members of Congress shall be

elected by single districts. There is nothing else in it.” Id.

Recognizing how late in the election cycle it was, the

Senate added a provision allowing Illinois to elect the

additional member apportioned to it recently by the

Supplemental Apportionment Act of 1862, 12 Stat. 353, “at

large . . . unless the legislature of said State should

otherwise provide before the time fixed by law for the

election of representatives therein.” 12 Stat. 572 (1862). 14

Over the next four decades, Congress passed

legislation reimplementing the single-member district

requirement. While some particulars varied, those

enactments shared two key characteristics: (1) They

14

California was given an exemption to elect all three of

its representatives to the Thirty-Eight Congress at large.

12 Stat. 572.

- 17 -

required states that did not lose seats and failed to

redistrict in time for the next Congressional election to

elect representatives from existing districts as “provided

by law” or as “prescribed by law,” with any newly added

representative(s) elected at-large; and (2) They required

states that lost seats and failed to redistrict in time to elect

all representatives at-large.

For example, the Forty-Second Congress enacted

the following provision:

Provided, That in the election of Representatives

to the forty-third Congress in any State which by

this law is given an increased number of

Representatives, the additional Representative or

Representatives allowed to such State may be

elected by the State at large, and the other

Representatives to which the State is entitled by

the districts as now prescribed by law in said State,

unless the legislature of said State shall otherwise

provide before the time fixed by law for the

election of Representatives therein.

§ 2, 17 Stat. 28 (1872) (42nd Congress). See also § 3, 22

Stat. 5, 6 (1882) (47th Congress); § 4, 26 Stat. 735, 736

(1891) (51st Congress); § 4, 31 Stat. 733, 734 (1901) (56th

Congress).

This consistent pattern, in turn, evinces two

critical aspects of the Nation’s enduring understanding

about the Elections Clause’s allocation of the authority to

draw House districts. First, that power is shared between

Congress and state legislatures—consistent with the

plain language of the Clause. Second, Congress’s

consistent and unchallenged use of terminology like

“prescribed/provided by law” reflects the general

understanding and acceptance of the fact that laws setting

- 18 -

House districts were (and remain) subject to the same

state-law inter-branch checks and balances as any other

laws.

D. The Sixty-Second Congresses

In 1911, the Sixty-Second Congress made it crystal

clear that the power to draw congressional districts was

not limited to state legislatures. After restating the

contiguous, fairly apportioned single-member district

requirement, 15 Congress located the redistricting power

without mentioning state legislatures.

That in case of an increase in the number of

Representatives in any State under this

apportionment such additional Representative or

Representatives shall be elected by the State at

large and the other Representatives by the

districts now prescribed by law until such State

shall be redistricted in the manner provided by the

laws thereof and in accordance with the rules

enumerated in section three of this Act; and if

there be no change in the number of

Representatives from a State, the Representatives

thereof shall be elected from the districts now

15

See § 3, 37 Stat. 13, 14 (1911) (“That in each State

entitled under this apportionment to more than one

Representative, the Representatives to the Sixty-third

and each subsequent Congress shall be elected by

districts composed of a contiguous and compact territory,

and containing as nearly as practicable an equal number

of inhabitants. The said districts shall be equal to the

number of Representatives to which such State may be

entitled in Congress, no district electing more than one

Representative.”)

- 19 -

prescribed by law until such State shall be

redistricted as herein prescribed. § 4, 37 Stat. 13,

14 (1911) (emphases added).

A review of the debates shows that Congress chose

advisedly to remove any reference to state legislatures,

and why.

As reported to the House on April 27, 1911, the

apportionment bill, H.R. 2983, stated—like its 1891 and

1901 predecessors—that its requirements were in force

“until such state shall be redistricted by the legislature

thereof.” 47 Cong. Record 673 (1911). Indiana Republican

Edgar Crumpacker registered his concern about “a

temptation in all the States for the party in power to take

a little advantage in constituting congressional districts, a

little party advantage.” Id. at 673–74. He pointed out that,

as a practical matter, until relatively recently “there had

been no other method established by any State in the

Union for the redistricting, except by the legislature

thereof.” Id. at 673. State ballot initiatives and

referendum processes had enabled states to “redistrict

their territory for congressional purposes without the aid

or assistance of the legislature.” Id. Retaining statutory

language that assigned (or purported to assign)

redistricting authority specifically to the state legislature

would “prevent those States from exercising that great

function of redistricting their States for congressional

purposes by the initiative and referendum altogether.” Id.

Accordingly, Crumpacker offered an amendment excising

the italicized words from the phrases “until such state

shall be redistricted by the legislature thereof.” Id. at

701. 16 The House, however, rejected Crumpacker’s

16

Missouri Republican Representative Richard Barthold

did not mince words in supporting Crumpacker, noting

- 20 -

amendment, see 47 Cong. Record 704 (1911), and the bill

moved over to the Senate with the “legislature thereof”

language intact.

On the first day of Senate debate, Ohio Republican

Theodore Burton proposed replacing “by the legislature

thereof in the manner prescribed,” with “In the manner

provided by the laws thereof and in accordance with the

rules enumerated in section 3 of this act.” Id. at 3436

(emphasis added). He described “the effect of the

that the Missouri “legislature which is to do the

redistricting is itself elected in badly gerrymandered

districts. How, then, can you secure pure water when the

spring is poisoned?” 47 Cong. Record 702 (1911). The

previous Congress had considered a bill, H.R. 30566,

whose text simply stated “until such State be redistricted”

unadorned by any reference to the state legislature. 46

Cong. Record 2224 (1911). Rep. Barthold objected to a

proposal to insert the words “by the legislature thereof”

after “redistricted”:

There are quite a number of States where the

people are willing to exercise their sovereign right

with regard to redistricting their States. The

question of redistricting is not one reserved to the

legislature by the Constitution of the United

States, but it is a sovereign right of the people and

the several States. Consequently the people, if they

desire to redistrict their States according to their

own wish and will, without consulting the

legislature, can do so by the initiative and

referendum, and this amendment would take away

from the people of the State the right to redistrict

by that method; and for that reason I hope the

amendment will be voted down. Id. at 2228.

(emphasis added).

- 21 -

expression, ‘by the legislature thereof’” as “a distinct and

unequivocal condemnation of any legislation by

referendum or by initiative.” Id. Burton concluded: “A

due respect to the rights, to the established methods, and

to the laws of the respective States requires us to allow

them to establish congressional districts in whatever way

they may have provided by their constitution and by their

statutes.” Id. (emphasis added). The Senate agreed to

Burton’s amendment on an almost straight party line

vote. Id. at 3556.

Immediately thereafter Missouri Democratic

Senator James Reed offered an amendment narrowing

the application of Burton’s amendment by calling for

states to “be redistricted by the legislature thereof, or by

the people thereof.” Id. The Senate defeated this

amendment on an almost straight party line vote. Id.

Ultimately, the Burton version became law. § 4, 37 Stat.

13, 14 (1911).

The vote against Reed’s amendment demonstrates

that Congress chose not to limit redistricting to state

legislatures, and its actions respecting referenda and

other means of redistricting reflect Congress’s

understanding that the districting power can reside in any

actor provided for by the laws of the state, including an

independent commission, the voters, or the courts.

As this Court recognized in New York v. United

States, “[t]he Constitution does not protect the

sovereignty of States . . . for the benefit of public officials

governing the States. To the contrary, the Constitution

divides authority between federal and state governments

for the protection of individuals.” 505 U.S. at 181. By the

actions and debates described above, Congress made it

clear that the people of each state should enjoy the

benefits flowing from distributing power among the

- 22 -

branches and actors comprising their state governments

if they so choose.

E. The Seventieth, Seventy-First, Seventy-Sixth

and Seventy-Seventh Congresses

With little recorded debate or discussion, the

Seventieth and Seventy-First Congresses allowed the

single-member district, fair apportionment, and “by law”

provisions of the 1911 Act to “expire[] by their own

limitation” in 1929. Wood v. Broom, 287 U.S. 1, 7 (1932). 17

The Apportionment Act of 1940 contained little

more than fixes to conform the apportionment timetable

to the Twentieth Amendment. 54 Stat. 162 (1940). 18 As

Representative Ed Gossett [D-TX] explained to the

Senate Commerce Committee a year after the Act’s

passage, “rather than go into technical, almost

metaphysical calculations of these [two contending

apportionment] methods, we concluded to change merely

the dates in order to cure the hiatus left by the ‘lame duck’

amendment.” Apportionment of Representatives in

Congress: Hearings Before the United States Senate

Committee on Commerce, Subcommittee on H.R. 2665,

Seventy-Seventh Congress, First Session, on Feb. 27, 28,

17

Six months earlier, the Court recognized that this

provision “ha[d] not been expressly repealed” as it upheld

the legitimacy of a gubernatorial veto of a redistricting

bill. Smiley v. Holm, 285 U.S. 355, 373 (1932).

18

Section 1 contained the timetable fix for delivering the

apportionment results to Congress. Section 2 amended

the 1929 Census Act by giving Congress only 60 days to

override an automatic reapportionment of the House.

Compare § 2, 54 Stat. 162 (1940), with § 22(b), 46 Stat. 21,

26 (1929).

- 23 -

Mar. 1, 1941, 5 (G.P.O. 1941). The 1940 Act, 54 Stat. 162,

was passed in such haste that no one noticed that it failed

to amend that part of the 1929 Act calling for the new

apportionment to go into effect with “second succeeding

Congress.” § 22(b), 46 Stat. 21, 26–27 (1929) (emphasis

added). That would be the Seventy-Ninth Congress in

1945.. Further legislation would be needed.

On January 8, 1941, President Roosevelt

transmitted to Congress the two apportionments of a 435

member House by the methods specified in Section 22(a)

of the 1929 Census Act. House Committee on the Census,

Message from the President of the United States

Transmitting a Statement Prepared by the Director of

the Census, H. Rep No. 77-45, 1 (Washington 1941). The

“technical, almost metaphysical” differences between the

two apportionment methods the previous Congress had

decided not to delve into now became very real: If

Congress did nothing, the last seat in the House would go

to Republican-leaning Michigan. If Congress adopted the

Method of Equal Proportions (the statutory alternative to

the prevailing Method of Major Fractions) the last seat

would go to reliably Democratic Arkansas. See Dep’t of

Commerce v. Montana, 503 U.S. 442, 464 n.42 (1992).

Not surprisingly, most of the debate on the

Apportionment Act of 1941, § 2, 55 Stat. 761, 762 (1941),

focused on apportionment methods. The Senate

Commerce Committee, however, inserted a provision

addressing redistricting, resuming the lineage broken in

1929. See 87 Cong. Record 8051 (1941). This provision,

codified at 2 U.S.C. § 2a(c), uses “the districts then

prescribed by the law of such State” as its starting point,

without mentioning state legislatures specifically. E.g. id.

§ 2a(c)(2) (“if there is an increase in the number of

Representatives, such additional Representative or

- 24 -

Representatives shall be elected from the State at large

and the other Representatives from the districts then

prescribed by the law of such State”). First-year Senator

Harold Burton [R-OH], a member of the subcommittee

that had handled the bill and a future Associate Justice of

this Court, offered the sole comment on subsection 2a(c),

observing that it “merely writes into the law the situation

as it seems to be now settled by decisions of the courts. It

clarifies and lends authority to the existing practice.” 87

Cong. Record 8056 (1941).

F. The Ninetieth Congress

When this Court handed down its ruling in

Wesberry v. Sanders, 376 U.S. 1 (1964), Representative

Emanuel Celler [D-NY] had been trying for over a decade

to pass legislation requiring districting based on fair

apportionment.

Emanuel

Celler,

Congressional

Apportionment-Past, Present, and Future, 17 Law &

Contemp. Probs. 268 (1952). 19 In 1965 Celler finally got a

bill, H.R. 5505, through the House. 20 It required districts

to be compact to prevent gerrymandering and prohibited

19

The account of the legislative history given here

expands on the one given by Justice Stevens in his

concurrence in Branch v. Smith. See 538 U.S. 254, 285–92

(2003) (Stevens, J., concurring in part and concurring in

the judgment).

20

For the committee hearings see Congressional

Redistricting. Hearings before Subcommittee No. 5 of the

Committee on the Judiciary, House of Representatives,

Eighty-eighth Congress, second session, on H.R. 699 [and

others] ... March 18-19, 1964 (Washington, U.S. Govt.

Print. Off., 1964). For the floor debate see 111 Cong.

Record 5080–5101 (1965).

- 25 -

district sizes more than fifteen percent away from a

state’s average district population. Federal Standards for

Congressional Redistricting, H. REP. No. 89-140, 2–3

(1965). It also “eliminate[d] existing provisions for

Representatives at Large.” Id. at 2.

After striking Harold Burton’s 1941 addition [to

§ 22(c) of the 1929 Census Act, see id. at 5, H.R. 5505

added:

In each State entitled in the Ninetieth Congress or

in any subsequent Congress to more than one

Representative under an apportionment made

pursuant to the provisions of section 2a(a) of this

section, there shall be established by law a number

of districts equal to the number of Representatives

to which such State is so entitled, and

Representatives shall be elected only from

districts so established, no district to elect more

than one Representative. Id. at 3 (emphasis

added).

The Senate referred the bill to the Judiciary Committee,

from which it never emerged. 111 Cong. Record 5386

(1965). In 1967, the House passed a similar bill, H.R. 2508,

containing the language above. An amended version

passed the Senate. Ultimately, the House but not the

Senate agreed to a conference committee report and

Celler’s bill was not enacted. 21

Following the Senate’s rejection of the conference

report its next calendar item was H.R. 2275, “A bill for the

relief of Doctor Ricardo Vallejo Samala.” Id. at 31718. It

had already been reported by the Judiciary Committee.

21

For the House vote see 113 Cong. Record 30251 (1967).

For the Senate vote see id. at 31712.

- 26 -

Id. at 30029. Almost immediately, Indiana Democrat

Birch Bayh proposed adding the following text to the

Samala bill:

Sec. 2. (a) In each State (other than the States of

New Mexico and Hawaii) which is entitled in the

Ninety-first Congress or in any subsequent

Congress thereafter to more than one

Representative under an apportionment made

pursuant to the [1929 Apportionment Act] . . . ,

there shall be established a number of districts

equal to the number of Representatives to which

such State is so entitled, and Representatives shall

be elected only from districts so established, no

district to elect more than one Representative. Id.

at 31718 (emphasis added). 22

Tennessee Republican Howard

proposed a slimmer alternative:

Baker

then

In each State entitled in the Ninety-first Congress

or in any subsequent Congress thereafter to more

than one Representative under an apportionment

made pursuant to the [1929 Apportionment

Act] . . . , as amended, there shall be established by

law a number of districts equal to the number of

Representatives to which such State is so entitled,

and Representatives shall be elected only from

districts so established, no district to elect more

than one Representative. Id. (emphasis added).

22

Additional text, denoted 2(b), prohibited any middecade redistricting “unless alteration thereof is required

by a statewide special census of the United States

conducted before 1970.” Id.

- 27 -

It eliminated any exemptions to allow at-large

election 23 and it employed Celler’s phrase “there shall be

established by law” in place of Bayh’s “there shall be

established.” Baker explained that his purpose was

to adopt the language of the original, amended

Senate version of the redistricting bill relating to

the prohibition against election of Representatives

to the U.S. House of Representatives at large. . . .

It has nothing to do with gerrymandering. It has

nothing to do with compactness. 113 Cong. Record

31718 (emphasis added) (1967).

Gerrymandering and compactness would be left to the

states to address by state law as they chose.

With Baker’s amendment replacing Bayh’s, see id.

at 31719, the two of them engaged in a dialogue about the

phrase “there shall be established by law”:

[BAYH] I would interpret “by law” to mean

if the reapportionment is done either by the State

legislatures or by the court. I should like to know

whether the Senator from Tennessee agrees with

that interpretation.

[BAKER] Mr. President, in the ordinary

course of events, it is clearly the province of the

State legislature to establish the number, the size,

and the location of congressional districts. It would

be only if State legislatures failed in their

performance of that duty that there would be any

derivative right of the judiciary, Federal or State,

to intervene. So, in answer to the question, this

23

New Mexico and Hawaii were ultimately given

reprieves for the Ninety-First Congress only. See 81 Stat.

581 (1967).

- 28 -

language would imply, to me, without equivocation,

that it would be the duty of the State legislature by

law to create these districts.

[BAYH] I am not making myself clear.

Suppose a State legislature does not do it. Does the

Senator not think that, to be consistent, we should

say that the Federal court should not be permitted

to reapportion a State and let all the legislators run

at large?

[BAKER] With respectful deference to my

colleague, I think not; because I believe that you

are then running afoul of the very problem that is

created by occasional failure of State legislatures

to adhere to the provisions of article I of the

Constitution.

It seems to me that the only thing we need

to do or that properly should be done at this point

is to provide that legislative districts shall be

created. The law already exists to direct that the

State legislature shall do it, and I see no reason to

go any further nor to make any elaboration or

extension of that language.

[BAYH] Let me rephrase the question.

Take a hypothetical situation in which the State

legislature has been ordered by the court to

reapportion, and the State legislature, for reasons

which I believe all of us who have sat through this

discussion during the past several months can

understand, would not come to agreement. Then

the court would take it upon itself to do one of two

things-to carve up the districts or to say that the

Congressmen shall run at large.

…

- 29 -

If we are going to be sincere about this

matter, if it is bad government for the legislature

to say that Congressmen should run at large, then

it is bad government for the court to have an entire

group of Congressmen running at large in a State.

[BAKER] In response to that point, I

agree, and I would point to my own situation in

Tennessee, where the legislature was not able to

agree on redistricting, and the Federal judiciary

undertook to redistrict, did so, established

boundaries by counties, and designated the areas

from which Members would run.

If we should fall on those unhappy

circumstances, I would greatly prefer that the

judiciary, State or Federal, designate individual

single-Member districts; running at large never

really accommodates the principle of equal

representation. It never really accommodates the

idea that the House of Representatives is properly

made up of Representatives of districts of varying

interests.

[BAYH] Let me rephrase the question in

light of the colloquy. When we say “as amended,

there shall be established by law a number of

districts equal to the number of Representatives to

which such State is so entitled, and

Representatives shall be elected only from

districts so established, no district to elect more

than one Representative,” we are talking about

either of two situations-whether the legislature

reapportions or whether the court reapportions.

[BAKER] The Senator is correct.

Id. at 31719–20.

- 30 -

When the dialogue ended the Senate agreed to

Baker’s proposed text. Id. at 31720. That language is now

codified at 2 U.S.C. § 2c. 24

The statute in force today thus reflects and is

consistent with the actions of multiple Congresses for a

century and a half, which have recognized and authorized

House districts to be established by state law—a concept

that necessarily includes ordinary state judicial review.

*

*

24

*

In enacting 2 U.S.C. § 2c in 1967, Congress neglected to

repeal 2 U.S.C. § 2a(c), even though its use of at-large

elections directly conflicts with Baker’s clearly articulated

intent to eliminate the at-large option. Section 2a(c)

remains today, though subordinate to § 2c. Branch v.

Smith, 538 U.S. 254, 266–72 (2003) (Scalia J., writing for a

four Justice plurality). See id. at 285-92 (Stevens, J.,

concurring in part and concurring in the judgment)

(arguing that § 2a(c) had been repealed by implication).

- 31 -

CONCLUSION

For the foregoing reasons, this Court should

affirm the decision below.

Respectfully submitted.

PETER K. STRIS

MICHAEL N. DONOFRIO

Counsel of Record

STRIS & MAHER LLP

777 S. Figueroa St., Ste. 3850

Los Angeles, CA 90017

(802) 858-4465 (direct)

(213) 995-6800

mdonofrio@stris.com

Counsel for Amicus Curiae

October 24, 2022

- 32 -