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.

Supreme Court briefOct 26, 2022

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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,

REBECCA HARPER, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

BRIEF OF HUMAN RIGHTS WATCH

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

RISHI N. ZUTSHI

Counsel of Record for Amicus

CHIHIRO ISOZAKI

ALEXIS BRAMHALL

LILIANNA REMBAR

ALEC MITCHELL

JOSEPH BRUNER

CLEARY GOTTLIEB STEEN & HAMILTON LLP

One Liberty Plaza

New York, New York 10006

(212) 225-2000

rzutshi@cgsh.com

October 26, 2022

TABLE OF CONTENTS

Page

---TABLE OF AUTHORITIES ...................................... iii

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

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

ARGUMENT ................................................................ 3

CONGRESS,

THROUGH

THE

RATIFICATION OF THE ICCPR AND THE

ICERD, HAS GUARANTEED THE RIGHT

TO VOTE FREE FROM PARTISAN

GERRYMANDERING

AND

DISCRIMINATION, AS WELL AS AN

EFFECTIVE REMEDY TO VINDICATE

THAT RIGHT ...................................................... 3

A. The Right To Vote Free From Partisan

Gerrymandering .......................................... 4

B. The Right To Vote Free From

Discrimination .............................................. 6

C. The Right To An Effective Remedy When

Voting Rights Are Violated .......................... 9

II.

ADOPTION OF THE ISLT WOULD

DEPRIVE VOTERS OF ANY EFFECTIVE

REMEDY

FOR

PROHIBITED

GERRYMANDERING

CONTRAVENTION OF THE WILL OF

CONGRESS AND THE NORTH CAROLINA

STATE LEGISLATURE ................................... 10

III. ADOPTION OF THE ISLT WOULD

CONTRAVENE THE U.S. FOREIGN

POLICY OBJECTIVES THAT ANIMATED

CONGRESSIONAL APPROVAL OF THE

ICCPR ................................................................ 14

IV. ADOPTION OF THE ISLT WOULD

UNDERMINE PROTECTIONS AGAINST

PARTISAN GERRYMANDERING THAT

ARE A BULWARK AGAINST OTHER

HUMAN RIGHTS VIOLATIONS..................... 20

A. In Sri Lanka, District Gerrymandering

Has Led To The Disenfranchisement Of

Religious Minorities ................................... 21

B. Iran’s Political System Demonstrates

That Without Effective Voting Remedies,

Citizens Cannot Exercise Fundamental

Rights .......................................................... 27

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n,

576 U.S. 787 (2015) .............................................. 10

Ashwander v. Tenn. Valley Auth.,

297 U.S. 288 (1936) .............................................. 13

Edye v. Robertson,

112 U.S. 580 (1884) ................................................ 3

Flores v. S. Peru Copper Corp.,

414 F.3d 233 (2d Cir. 2003).................................... 3

Graham v. Florida,

560 U.S. 48 (2010) ................................................ 19

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) .............................................. 19

Harper v. Hall,

380 N.C. 317 (2022) ................................................ 2

Lawrence v. Texas,

539 U.S. 558 (2003) .............................................. 19

Medellín v. Texas,

552 U.S. 491 (2008) ................................................ 4

N.C. State Conf. of the NAACP v. McCrory,

831 F.3d 204 (4th Cir. 2016) .................................. 7

Roper v. Simmons,

543 U.S. 551 (2005) .............................................. 19

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .............................. 10, 11, 12

Trop v. Dulles,

356 U.S. 86 (1958) ................................................ 19

United States v. Duarte-Acero,

208 F.3d 1282 (11th Cir. 2000) .............................. 5

Constitutional Provisions

U.S. Const. art. II, § 2, cl. 2 ................................... 3, 12

U.S. Const. art. VI, § 1, cl. 2 ........................................ 4

Other Authorities

2019 SRI LANKAN PRESIDENTIAL ELECTION,

ELECTION OBSERVATION REPORT, CTR. FOR

MONITORING ELECTION VIOLENCE (2020),

https://anfrel.org/wpcontent/uploads/2020/06/cmev-presidentialelection-2019-final-report-english-3.pdf .............. 25

Phillip Baumgart, Sri Lanka’s Parliamentary

Elections Will Shape Its Political Future—Likely

for the Worse, NEW ATLANTICIST (Jul. 30, 2020),

https://www.atlanticcouncil.org/blogs/newatlanticist/sri-lankas-parliamentary-electionswill-shape-its-political-future-likely-for-theworse/ .................................................................... 24

Ryan C. Black & Ryan J. Owens, We Are the World:

The U.S. Supreme Court’s Use of Foreign Sources

of Law, 46 BRITISH J. POL. SCI. 891 (2016) .......... 19

A BRIEF GUIDE TO THE 20TH AMENDMENT TO THE

CONSTITUTION, CTR. FOR POLICY ALTERNATIVES

(2021), https://www.cpalanka.org/wpcontent/uploads/2021/07/A-brief-guide-to-the20th-Amendment-to-the-Constitution-EnglishCPA-compressed_compressed-1.pdf .................... 25

Evelyn Cheng, China Slams U.S. Democracy as a

‘Game of the Rich’ at an Event Promoting Xi’s

Growing Power, CNBC (Nov. 15 2014),

https://www.cnbc.com/2021/11/12/china-criticizesus-democracy-while-promoting-xis-growingpower.html............................................................ 16

China: Third Term for Xi Threatens Rights, HUMAN

RIGHTS WATCH (Oct. 10, 2022),

https://www.hrw.org/news/2022/10/10/china-thirdterm-xi-threatens-rights ...................................... 16

Emily Couch, Why We Should Stop Portraying

African Americans as Victims in the Soviet

Propaganda Game, WILSON CTR. (Feb. 18, 2020),

https://www.wilsoncenter.org/blog-post/why-weshould-stop-portraying-african-americansvictims-soviet-propaganda-game ......................... 15

DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA EUR.

UNION ELECTION OBSERVATION MISSION, FINAL

REPORT: PRESIDENTIAL ELECTION, 16 NOVEMBER

2019 (2020),

https://www.europarl.europa.eu/cmsdata/212448/

SriLanka_presidential_election_16_November_2019_

EU_EOM_report.pdf ...................................... 25, 26

Farbod Faraji & Lee Drutman, Hungary’s

Viktor Orbán Can Thank the U.S. for

Facilitating His Rise to Power,

CHICAGO TRIBUNE (Aug. 3, 2022) ......................... 21

Farnaz Fassihi, How Two Teenagers Became the

New Faces of Iran’s Protests, N.Y. TIMES (Oct. 13,

2022) ..................................................................... 28

Farnaz Fassihi, In Iran, Woman’s Death After Arrest

by the Morality Police Triggers Outrage, N.Y.

TIMES (Sept. 16, 2022) .......................................... 28

THE FEDERALIST NO. 69 (Alexander Hamilton) ........ 12

Freedom House, Iran, FREEDOM IN THE WORLD 2021,

https://freedomhouse.org/country/iran/freedomworld/2022 (last visited Oct. 24, 2022) ................ 30

Freedom House, Sri Lanka, FREEDOM IN THE WORLD

2021, https://freedomhouse.org/country/srilanka/freedom-world/2021 (last visited Oct. 22,

2022) ............................................................... 23, 26

G.A. Res. 60/147, Basic Principles and Guidelines on

the Right to a Remedy and Reparation for Victims

of Gross Violations of International Human

Rights Law and Serious Violations of

International Humanitarian Law

(Mar. 21, 2006) ..................................................... 10

Lydia Gall, Hungary’s Authoritarian Leader

is No Gift to U.S. Conservatives,

THE HILL (Aug. 4, 2022) ....................................... 20

Sujata Gamage, Electoral Reform: NMSJ Proposes

Mixed Member System Within Overall PR,

COLOMBO TELEGRAPH (Dec. 20, 2021),

https://www.colombotelegraph.com/index.php/elec

toral-reform-nmsj-proposes-mixed-membersystem-within-overall-pr/ ..................................... 22

Gazette Extraordinary No. 2178/18 of June 2, 2020

(Sri Lanka) ........................................................... 24

Gerrymandering, BLACK’S LAW DICTIONARY

(11th ed. 2019) ........................................................ 4

vii

Rex D. Glensy, The Use of International Law in U.S.

Constitutional Adjudication, 25 EMORY INT’L L.

REV. 197 (2011)..................................................... 18

HUMAN RIGHTS WATCH, ACCESS DENIED: IRAN’S

EXCLUSIONARY ELECTIONS 3 (2005),

https://www.hrw.org/sites/default/files/

media_2021/08/202108mena_iraq_

exlcusionaryelection.pdf................................. 29, 30

HUMAN RIGHTS WATCH, Hungary: Events of 2021,

https://www.hrw.org/world-report/2022/countrychapters/hungary (last visited Oct. 23, 2022) ..... 21

Saman Indrajith, Gevindu Insists on Abolishing

Provincial Councils Under New Constitution,

ISLAND ONLINE (Sep. 26, 2020)

https://island.lk/gevindu-insists-on-abolishingprovincial-councils-under-new-constitution/ ....... 23

International Convention on the Elimination of All

Forms of Racial Discrimination, Dec. 21, 1965,

T.I.A.S. 94-1120, 660 U.N.T.S. 195 ............... 2, 6, 9

International Covenant on Civil and Political Rights,

Dec. 16, 1966, T.I.A.S. 92-908,

999 U.N.T.S. 3 .............................................. passim

Julia Ioffe, The History of Russian Involvement in

America’s Race Wars, ATLANTIC (Oct. 21, 2017),

https://www.theatlantic.com/international/archive

/2017/10/russia-facebook-race/542796/ ................ 15

Iran: Security Forces Fire On, Kill Protesters,

HUMAN RIGHTS WATCH (Oct. 5, 2022),

https://www.hrw.org/news/2022/10/05/iransecurity-forces-fire-kill-protesters ....................... 28

viii

Khosro Kalbasi Isfahani (@KhosroKalbasi),TWITTER

(Oct. 3, 2022, 9:59 AM),

https://twitter.com/KhosroKalbasi/status/1576935

015492960256....................................................... 28

Alan Keenan, Sri Lanka: Landslide Win for the

Rajapaksa Puts Democracy and Pluralism

at Risk, CRISIS GROUP (Aug. 12, 2020),

https://www.crisisgroup.org/asia/south-asia/srilanka/sri-lanka-landslide-win-rajapaksa-putsdemocracy-and-pluralism-risk ............................. 23

Law for the Elections of the Islamic Consultative

Parliament [Majles] of 1995, art. 28 (Iran) ......... 29

Anthony Lester, The Overseas Trade in the

American Bill of Rights, 88 COLUM. L. REV. 537

(1988) .................................................................... 20

Varun Nambiar, Sri Lanka Supreme Court Rules

Against Provincial Council Elections Before

Delimitation of Electoral Districts,

JURIST (Sep. 3, 2019),

https://www.jurist.org/news/2019/09/sri-lankasupreme-court-rules-against-provincial-councilelections-before-delimitation-of-electoraldistricts/ .......................................................... 22, 23

ELIZABETH L. OSBORNE, THE PRINCIPLES OF

EQUALITY AND NON DISCRIMINATION, A

COMPARATIVE LAW PERSPECTIVE: UNITED

STATES OF AMERICA 1 (2021),

https://www.europarl.europa.eu/RegData/et

udes/STUD/2021/689375/EPRS_STU(2021)

689375_EN.pdf ....................................................... 7

Provincial Councils’ Delimitation Report in

the House for Debate, SUNDAY TIMES (Mar.

4, 2018),

https://www.sundaytimes.lk/180304/news/p

rovincial-councils-delimitation-report-inthe-house-for-debate-284427.html ...................... 22

Provincial Council Elections Cannot Be Held

Under Previous System: Supreme Court,

NEWS FIRST (Sep. 3, 2019),

https://www.newsfirst.lk/2019/09/03/provincialcouncil-elections-cannot-be-held-under-previoussystem-supreme-court/ ......................................... 23

Resolution of Ratification: Senate Consideration of

Treaty Document 95-20,

https://www.congress.gov/treaty-document/95thcongress/20/resolution-text .................................... 8

Shaahidah Riza, Delimitation and Its Effect on

Minorities, SRI LANKA BRIEF (Mar. 19, 2015),

https://srilankabrief.org/delimitation-and-itseffects-on-minorities/...................................... 21, 22

Kenneth Roth, Introduction, in HUMAN RIGHTS

WATCH, WORLD REPORT 2006 1 (2006),

https://www.hrw.org/legacy/wr2k6/introduction/in

troduction.pdf ....................................................... 14

Senate Comm. on Foreign Relations, Report on the

International Covenant on Civil and Political

Rights, S. Exec. Rep. No. 23, 1

(102d Sess. 1992) ................................ 14, 15, 16, 17

Tara Sepehri Far, Iran’s Guardian Council Trounces

Religious Freedom, HUMAN RIGHTS WATCH (Oct.

28, 2017), https://www.hrw.org/news/2017/10/28/

irans-guardian-council-trounces-religiousfreedom ........................................................... 29, 30

Sri Lanka: Covid-19 Forced Cremation of Muslims

Discriminatory, HUMAN RIGHTS WATCH (Jan. 18,

2021), https://www.hrw.org/news/2021/01/18/srilanka-covid-19-forced-cremation-muslimsdiscriminatory ...................................................... 26

Sri Lanka Decides to Postpone Provincial Elections,

SOUTH ASIAN MONITOR (Dec. 30, 2020),

https://www.southasiamonitor.org/sri-lanka/srilanka-decides-postpone-provincial-elections ....... 23

Sri Lanka Moves Closer Towards Abolishing

Provincial Councils, EARLY TIMES (May 16, 2013),

http://www.earlytimes.in/newsdet.aspx?

q=107523 .............................................................. 23

Sri Lanka: Newly Adopted 20th Amendment to the

Constitution is Blow to the Rule of Law, INT’L

COMM’N JURISTS (Oct. 27, 2020),

https://www.icj.org/sri-lanka-newly-adopted-20thamendment-to-the-constitution-is-blow-to-therule-of-law/............................................................ 25

Sri Lanka to Hold Coronavirus-Delayed Election on

August 5, AL JAZEERA (Jun. 11, 2020).

https://www.aljazeera.com/news/2020/6/11/srilanka-to-hold-coronavirus-delayed-election-onaugust-5 ................................................................ 24

Gulbin Sultana, Sri Lanka Headed for Elections:

Democracy in Distress?, MANOHAR PARRIKAR INST.

FOR DEF. STUDIES & ANALYSES (Jul. 17, 2020),

https://idsa.in/issuebrief/sri-lanka-headed-forelections-gsultana-170720 ................................... 24

SUMMARY OF CHANGES UNDER THE PROPOSED 20TH

AMENDMENT, CTR. FOR POLICY ALTERNATIVES

(2020), https://www.cpalanka.org/wpcontent/uploads/2020/09/Final-doc-Summary-ofChanges-Under-the-Proposed-20thAmendment.pdf .................................................... 25

Three Political Parties Suggest an Electoral System

Based on Proportional Representation for the

Country, COLOMBO PAGE (Oct. 8, 2021)

http://colombopage.com/archive_21B/Oct08_16337

05044CH.php ........................................................ 22

U.N. Comm. on the Elimination of Racial

Discrimination, Concluding Observations on the

Combined Seventh to Ninth Periodic Reports of

the United States Of America, U.N. Doc.

CERD/C/USA/CO/7-9 (Sept. 25, 2014) .................. 7

U.N. Human Rights Comm., Concluding

Observations: Iran, U.N. Doc. CCPR/C/IRN/CO/3

(Nov. 29, 2011),..................................................... 29

U.N. Human Rights Comm., Fifth Periodic Report

Submitted by the United States of America Under

Article 40 of the Covenant Pursuant to the

Optional Reporting Procedure, Due in 2020, U.N.

Doc CCPR/C/USA/5 (Jan. 15, 2021)..................... 18

xii

U.N. Human Rights Comm., General Comment No.

18 (1989) on Non-Discrimination, U.N. Doc.

HRI/GEN/1/Rev.6 (Nov. 10, 1989) ......................... 8

U.N. Human Rights Comm., General Comment No.

25 (1996) on the Right to Participate in Public

Affairs, Voting Rights and the Right of Equal

Access to Public Service, U.N. Doc.

CCPR/C/21/Rev.1/Add.7 (July 12, 1996) ........... 5, 6

U.N. Human Rights Comm., General Comment No.

31 (1989) on the Nature of the General Legal

Obligation Imposed on States Parties to the

Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 13

(Mar. 29, 2004) ........................................... 9, 10, 12

U.N. Human Rights Comm., List of Issues Prior to

Submission of the Fifth Periodic Report of the

United States of America, U.N. Doc

CCPR/C/USA/QPR/5 (Apr. 2, 2019) ..................... 18

U.S. DEP’T OF STATE, 2021 COUNTRY REPORTS ON

HUMAN RIGHTS PRACTICES: IRAN 50 (2021),

https://www.state.gov/reports/2021-countryreports-on-human-rights-practices/iran .............. 30

U.S. DEP’T OF STATE, 2021 REPORT ON INTERNATIONAL

RELIGIOUS FREEDOM: SRI LANKA (Jun. 2, 2022),

https://www.state.gov/reports/2021-report-oninternational-religious-freedom/sri-lanka/ .... 21, 27

Bill Van Esveld & Elaheh Sajadi, In Iran, Schoolgirls

Leading Protests for Freedom: Government

Repression Extends to Children, HUMAN RIGHTS

WATCH (Oct. 12, 2022),

https://www.hrw.org/news/2022/10/12/iranschoolgirls-leading-protests-freedom................... 28

xiii

C.V. Wigneswaran, Why the Presidential Task Force

on Archaeology in the Eastern Province and the

Future of the Tamils, COLOMBO TELEGRAPH (Apr.

23, 2021),

https://www.colombotelegraph.com/index.

php/why-the-presidential-task-force-onarchaeology-in-the-eastern-province-the

-future-of-the-tamils/............................................ 24

Aanya Wipulasena, Sri Lanka Election: Observers

Report Poll Day Violations, AL JAZEERA

(Nov. 16, 2019),

https://www.aljazeera.com/news/2019/11/16/srilanka-election-observers-report-poll-dayviolations .............................................................. 25

INTEREST OF AMICUS CURIAE 1

Human Rights Watch (“HRW”) is a non-profit,

non-partisan organization established in 1978 that

investigates and reports on violations of fundamental

human rights in over 100 countries worldwide with

the goal of securing the respect of these rights for all

persons. It is the largest international human rights

organization based in the United States. By exposing

and calling attention to human rights abuses

committed by state and non-state actors, Human

Rights Watch seeks to bring international public

opinion to bear upon offending governments and

others and thus bring pressure on them to end abusive

practices. Human Rights Watch has filed amicus

briefs before various bodies, including the U.S.

Supreme Court, U.S. courts of appeal, and the InterAmerican Commission on Human Rights.

SUMMARY OF ARGUMENT

By approving the ratification of the

International Covenant on Civil and Political Rights

(“ICCPR”) 2 and the International Convention on the

Elimination of All Forms of Racial Discrimination

1 Pursuant to Supreme Court Rule 37.6, amicus affirms that no

counsel for a party authored this brief in any part, and that no

person or entity, other than amicus and their counsel, made a

monetary contribution to fund the brief’s preparation and

submission. All parties have consented to the filing of this brief.

2 International Covenant on Civil and Political Rights, Dec. 16,

1966, T.I.A.S. 92-908, 999 U.N.T.S. 3 [hereinafter ICCPR].

(“ICERD”), 3 Congress has guaranteed to all U.S.

citizens the right to vote free from partisan

gerrymandering and discrimination. It has also

guaranteed an effective remedy for U.S. citizens

against violations of that right. An effective remedy

against partisan gerrymandering, as the ICCPR

makes clear, means judicial review. The guarantee of

the right to vote free from gerrymandering and to

judicial review is the supreme law of the land.

In approving these treaties, Congress also

explicitly recognized that guaranteeing these political

rights serves important interests, including

facilitating the ability of the United States to advocate

effectively for the rule of law and democratic

governance in other countries as a means of protecting

against human rights abuses. HRW’s experience in

monitoring and investigating human rights abuses

worldwide confirms that infringements on political

rights, including restrictions on the right to vote as a

result of gerrymandering, directly threaten other

fundamental human rights, particularly for people

historically marginalized or discriminated against

based on religion, race, or ethnicity.

The North Carolina Supreme Court’s decision

in Harper v. Hall, 380 N.C. 317 (2022) vindicated not

only Respondents’ rights under the North Carolina

State Constitution, but also the rights that Congress

has guaranteed under the ICCPR and the ICERD.

Adopting the novel interpretation of the Elections

3 International Convention on the Elimination of All Forms of

Racial Discrimination, Dec. 21, 1965, T.I.A.S. 94-1120, 660

U.N.T.S. 195, 212 [hereinafter ICERD].

Clause urged by Petitioners in this case—the

Independent State Legislature Theory (“ISLT”)—

would deprive Respondents, as well as all U.S.

citizens, of any effective remedy against partisan

gerrymandering.

Respondents have identified

numerous grounds on which the Court should reject

the ISLT. HRW submits this amicus brief because the

adoption of the ISLT would also directly contravene

the protections set forth in the ICCPR and the ICERD.

As a result, its adoption would undermine the

important national interests that animated

Congress’s approval of those treaties, including the

protection of human rights domestically and abroad.

ARGUMENT

CONGRESS, THROUGH THE RATIFICATION

OF THE ICCPR AND THE ICERD, HAS

GUARANTEED THE RIGHT TO VOTE FREE

FROM PARTISAN GERRYMANDERING AND

DISCRIMINATION, AS WELL AS AN

EFFECTIVE REMEDY TO VINDICATE THAT

RIGHT

As this Court has long made clear, once a treaty

has been ratified, it “is a law of the land as an act of

congress is.” Edye v. Robertson, 112 U.S. 580, 598

(1884). The United States cannot ratify a treaty

without the approval of the U.S. Senate by a twothirds supermajority vote. U.S. Const. art. II, § 2, cl.

2. Once it has ratified a treaty, the United States,

together with all other nations that have ratified that

treaty, is “legally obligated to uphold the principles

embodied in that treaty.” Flores v. S. Peru Copper

Corp., 414 F.3d 233, 256 (2d Cir. 2003) (citing Haver

v. Yaker, 76 U.S. 32, 35 (1869)). As a result of

Congress’s approval of the ICCPR and the ICERD,

which guarantee and require effective remedies to

protect the right to vote free from partisan

gerrymandering and discrimination, these protections

are the “supreme Law of the Land.” U.S. Const. art.

VI, § 1, cl. 2.

The Right To Vote Free From Partisan

Gerrymandering

“The interpretation of a treaty, like the

interpretation of a statute, begins with its text.”

Medellín v. Texas, 552 U.S. 491, 506 (2008). Article

25 of the ICCPR states that “[e]very citizen shall have

the right and the opportunity . . . [t]o vote and to be

elected at genuine periodic elections which shall be by

universal and equal suffrage and shall be held by

secret ballot, guaranteeing the free expression of the

will of the electors.” 4 By guaranteeing “equal

suffrage,” “genuine . . . elections,” and the “free

expression of the will of the electors,” article 25

prohibits partisan gerrymandering.

Partisan

gerrymandering—“[t]he practice of dividing a

geographical area into electoral districts, often of

highly irregular shape, to give one political party an

unfair advantage by diluting the opposition’s voting

strength” 5 —necessarily infringes on the “free

expression of the will of the electors,” deprives citizens

of “equal suffrage” on the basis of their political

opinions or party affiliation, and calls into question

whether an election is in fact “genuine.”

4 ICCPR,

supra note 2, at art. 25.

Gerrymandering, BLACK’S LAW DICTIONARY (11th ed. 2019).

To the extent that the plain text of article 25 of

the ICCPR permits any ambiguity, the prohibition on

partisan gerrymandering is set forth even more

explicitly in the guidance issued by the U.N. Human

Rights Committee (“HR Committee”), which, by the

ICCPR’s own terms, is the body charged with

providing authoritative interpretations of the treaty,

as well as with monitoring its implementation. 6 See

United States v. Duarte-Acero, 208 F.3d 1282, 1287–

88 (11th Cir. 2000) (holding that the HR Committee’s

General Comments “are recognized as a major source

for interpretation of the ICCPR”). First, General

Comment 25, issued by the HR Committee, states that

the right to vote entails that “[n]o distinctions are

permitted between citizens in the enjoyment of these

rights on the grounds of . . . political or other opinion.” 7

Second, it states that the“[t]he drawing of electoral

boundaries and the method of allocating votes should

not distort the distribution of voters or discriminate

against any group and should not exclude or restrict

unreasonably the right of citizens to choose their

ICCPR, supra note 2, at art. 40(4) (authorizing the HR

Committee to prepare general comments and transmit them to

the state parties as appropriate); arts. 40–41 (tasking the HR

Committee with monitoring State Parties’ progress in

implementing and complying with the ICCPR provisions); art. 28

(establishing the HR Committee).

7 U.N. Human Rights Comm., General Comment No. 25 (1996)

on the Right to Participate in Public Affairs, Voting Rights and

the Right of Equal Access to Public Service, U.N. Doc.

CCPR/C/21/Rev.1/Add.7 (July 12, 1996), ¶ 3 (emphasis added).

General Comment 25 also bars distinctions based on “race,

colour, sex, language, religion, . . . national or social origin,

property, birth or other status.” Id.

representatives freely.” 8 Third, the HR Committee

also expressly counsels against any electoral

framework where one’s party membership could affect

one’s right to vote. 9

The Right To

Discrimination

Vote

Free

From

The ICERD, which the United States has also

ratified and therefore carries the same legal force as

an act of Congress, states that signatories must

eliminate racial discrimination with regard to

“[p]olitical rights, in particular the right to participate

in elections—to vote and to stand for election—on the

basis of universal and equal suffrage.” 10 Under the

ICERD, the intent of government officials is largely

irrelevant, as the state is obligated to “take effective

measures to review governmental, national and local

policies, and to amend, rescind or nullify any laws and

regulations which have the effect of creating or

perpetuating racial discrimination wherever it exists”

without reference to the intent or aim of the state in

instituting those laws or regulations. 11

United Nations committees charged with

monitoring implementation of treaties—in particular,

the UN Committee on the Elimination of Racial

Discrimination (“CERD”) 12 —have expressed distinct

Id. ¶ 21 (emphasis added); see also ¶ 19.

Id. ¶ 10.

10 ICERD,

supra note 3, at art. 5(c).

Id. at art. 2, ¶ 1 (c).

12 The CERD is the interpreting body of the ICERD.

arts. 8–15.

See id. at

concern over “the obstacles faced by individuals

belonging to racial and ethnic minorities and

indigenous peoples to effectively exercise their right to

vote” in the United States. 13 Additionally, a recent

study commissioned by the European Parliament

expressed

concern

regarding

partisan

gerrymandering functioning as a proxy for racial

discrimination in the United States, noting

substantial similarities between what U.S. courts

found to be racially motivated gerrymandering and

what

they

found

lawful

partisan

gerrymandering. 14 This study observed that partisan

gerrymandering could cause the United States to fall

short of its non-discrimination obligations under

international law. 15

These concerns are echoed in United States

domestic law. Courts have noted political partisanship

may serve as a “proxy” for membership in other racial,

religious, or social groups. See, e.g., N.C. State Conf.

of the NAACP v. McCrory, 831 F.3d 204, 222 (4th Cir.

2016), cert denied, 137 S. Ct. 1399 (2017).

Consequently, it is no surprise that international

bodies have also found that the United States’

U.N. Comm. on the Elimination of Racial Discrimination,

Concluding Observations on the Combined Seventh to Ninth

Periodic Reports of The United States Of America, U.N. Doc.

CERD/C/USA/CO/7-9 (Sept. 25, 2014), ¶ 11.

14 ELIZABETH L. OSBORNE, THE PRINCIPLES OF EQUALITY AND NON

DISCRIMINATION, A COMPARATIVE LAW PERSPECTIVE: UNITED

STATES

AMERICA

67–68

(2021),

https://www.europarl.europa.eu/RegData/etudes/STUD/2021/68

9375/EPRS_STU(2021)689375_EN.pdf.

Id. at 73.

boundary-drawing gamesmanship could result in

discriminatory impacts across social groups. Partisan

gerrymandering may therefore give rise to violations

of non-discrimination provisions in both the ICCPR

and the ICERD. 16

16 The right to equality and freedom from discrimination is set

forth in articles 2(1) and 26 of the ICCPR. According to article

2(1), each State Party “undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the

rights recognized in the [ICCPR], without distinction of any kind,

such as race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth or other status.”

Article 26 of the ICCPR goes further to create an “autonomous

right” of equality and “prohibits discrimination in law or in fact

in any field regulated and protected by public authorities.” See

U.N. Human Rights Comm., General Comment No. 18 (1989) on

Non-Discrimination, U.N. Doc. HRI/GEN/1/Rev.6 (Nov. 10,

1989), ¶ 12. It states that “[a]ll persons are equal before the law

and are entitled without any discrimination to the equal

protection of the law. In this respect, the law shall prohibit any

discrimination and guarantee to all persons equal and effective

protection against discrimination on any ground such as race,

colour, sex, language, religion, political or other opinion, national

or social origin, property, birth or other status.” ICCPR, supra

note 2, at art. 26. The U.S. Senate made reservations with

respect to its approval of the ratification of the nondiscrimination provisions of the ICCPR, noting that

discrimination was prohibited except where it was reasonably

related to a legitimate government purpose. See Resolution of

Ratification: Senate Consideration of Treaty Document 95-20,

https://www.congress.gov/treaty-document/95thcongress/20/resolution-text. Tellingly, the U.S. Senate made no

reservations with respect to article 25, which prohibits partisan

gerrymandering.

The Right To An Effective Remedy When

Voting Rights Are Violated

Congress also approved a guarantee to U.S.

citizens of an effective remedy to vindicate the right to

vote free from gerrymandering and discrimination.

Article 2 of the ICCPR expressly requires all state

parties not only “to respect,” but also to “ensure” the

rights recognized by the ICCPR, 17 including by

“ensur[ing] that any person whose rights or freedoms

as herein recognized are violated shall have an

effective remedy.” 18 Furthermore, the HR Committee

has explained in General Comment 31 that article 2 of

the ICCPR mandates more than simply “effective

protection of [ICCPR] rights.” 19 State Parties “must

ensure that individuals also have accessible and

effective remedies to vindicate those rights” by

“establishing appropriate judicial and administrative

mechanisms for addressing claims of rights violations

supra note 2, at art. 2(2); U.N. Human Rights Comm.,

General Comment No. 31 (1989) on the Nature of the General

Legal Obligation Imposed on States Parties to the Covenant,

U.N. Doc. CCPR/C/21/Rev.1/Add. 13 (Mar. 29, 2004), ¶ 15.

17 ICCPR,

ICCPR, supra note 2, at art. 2(3)(a). Similarly, article 6 of the

ICERD explicitly provides that “States Parties shall assure to

everyone within their jurisdiction effective protection and

remedies, through the competent national tribunals and other

State institutions, against any acts of racial discrimination.”

ICERD, supra note 3, at art. 6.

19 Human Rights Comm., General Comment No. 31 (1989) on the

Nature of the General Legal Obligation Imposed on States

Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 13

(Mar. 29, 2004), ¶ 15.

under domestic law.” 20 General Comment 31 places

particular importance on the judiciary as a means of

assuring effective remedies to violations of the ICCPR,

noting “the enjoyment of the rights recognized under

the [ICCPR] can be effectively assured by the judiciary

in many different ways, including direct applicability

of the [ICCPR], application of comparable

constitutional or other provisions of law, or the

interpretive effect of the [ICCPR] in the application of

national law.” 21

II.

ADOPTION OF THE ISLT WOULD DEPRIVE

VOTERS OF ANY EFFECTIVE REMEDY FOR

PROHIBITED

GERRYMANDERING

CONTRAVENTION OF THE WILL OF

CONGRESS AND THE NORTH CAROLINA

STATE LEGISLATURE

In Rucho v. Common Cause, 139 S. Ct. 2484,

2506–07 (2019), this Court held that “partisan

gerrymandering claims present political questions

beyond the reach of the federal courts,” but pointed to

other judicial and administrative remedies available

for such claims, including review by state courts and

independent redistricting commissions. Id. at 2507–

08; see also Ariz. State Legislature v. Ariz. Indep.

Id. (emphasis added); see also G.A. Res. 60/147, annex, ¶¶ 3(c),

(d), 11–12, Basic Principles and Guidelines on the Right to a

Remedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of

International Humanitarian Law (Mar. 21, 2006).

21 Human Rights Comm., General Comment No. 31 (1989) on the

Nature of the General Legal Obligation Imposed on States

Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 13

(Mar. 29, 2004), ¶ 15.

Redistricting

Comm’n,

576 U.S. 787 (2015).

Petitioners now urge the Court to adopt an

interpretation of the Elections Clause that would

foreclose those remedies and deprive U.S. citizens of

any effective remedy to redress claims of partisan

gerrymandering. 22 Petitioners’ arguments should be

rejected because such a result would plainly

contravene the United States’ legal obligations under

the ICCPR and the ICERD. By approving those

treaties, Congress has not only prohibited partisan

gerrymandering, 23 but it has also committed to

providing judicial or similar review as a remedy for

claims of gerrymandering. 24

As this Court has previously held, “[t]he

Framers . . . gave Congress the power to do something

about partisan gerrymandering in the Elections

Clause.” See Rucho, 139 S. Ct. at 2508. Petitioners

concede, as they must, that the power of a state

legislature to regulate federal elections is subject to “a

final check on abuse” by Congress. 25 But Petitioners

ignore the fact that Congress has already spoken on

this issue by approving the ICCPR and the ICERD in

See Petitioners’ Br. at 39 (“[T]he power to regulate federal

elections lies with State legislatures alone, and the [Elections]

Clause does not allow the state courts, or any other organ of state

government, to second-guess the legislature’s determinations.”)

(emphasis omitted), 40 n. 9 (“To the extent the Court were to find

that some portion of the Arizona opinion is contrary to

Petitioners’ position in this case, and that the case is not

distinguishable, the Court should overrule it.”).

See supra Section I.A.

See supra Section I.C.

25 Petitioners’ Br. at 30.

the

manner

that

the

Founders

explicitly

contemplated, i.e., with a super-majority vote of the

U.S. Senate. 26 By duly approving a treaty that

prohibits partisan gerrymandering and requires

effective remedies for voters to protect their rights,

Congress has placed a check on the authority of state

legislatures to engage in independent districtdrawing. 27 Article 25 of the ICCPR—which Congress

approved without reservations—prohibits partisan

gerrymandering. 28 To fulfill a State Party’s ICCPR

article 2 obligation to provide “effective remedies,” the

HR Committee points to “judicial and administrative

mechanisms” as appropriate to address violations of

the ICCPR. 29 Following the Court’s decision in Rucho,

state court review of partisan gerrymandering is the

only judicial review available to U.S. citizens that can

satisfy this “effective remedy” obligation. See Rucho,

138 S. Ct. at 2507. In other words, Congress has

exercised its constitutional authority by approving the

ICCPR and has required judicial review to redress

claims of partisan gerrymandering.

See U.S. Const. art. II, § 2, cl. 2; THE FEDERALIST NO. 69, at

359 (Alexander Hamilton) (distinguishing the powers of the

President from those the monarchy in Great Britain based on,

among other things, the requirement that treaties be made only

“with the concurrence of a branch of the legislature”).

See supra Section I.

U.N. Human Rights Comm., General Comment No. 31 (1989)

on the Nature of the General Legal Obligation Imposed on States

Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 13

(Mar. 29, 2004), ¶ 15.

In addition, the North Carolina State

Legislature has also already spoken on this issue, and

Petitioners’ theory would eviscerate the legislation

passed in North Carolina to provide an adequate

judicial remedy for addressing gerrymandered

districts. As Non-State Respondents explain, “the

[North Carolina] legislature provided that ‘action[s]

challenging the validity of any act . . . that apportions

or redistricts . . . congressional districts shall be filed

in’ a particular court and unambiguously directed that

the action ‘shall be heard and determined by a threejudge panel’ of that court.” 30 That legislation even

“endorsed ‘judgment[s] declaring unconstitutional . . .

any act’ that ‘apportions or redistricts . . .

congressional districts.’” 31 Through that legislation,

the North Carolina State Legislature has fulfilled

obligations that the United States undertook under

the ICCPR and the ICERD, consistent with the

requirements of the Supremacy Clause. Because both

Congress’s approval of the ICCPR and the ICERD and

duly enacted legislation by the North Carolina State

Legislature bar the relief that Petitioners seek, the

Court “[need] not pass upon [the] constitutional

question” raised by Petitioners regarding the scope of

the Elections Clause. See Ashwander v. Tenn. Valley

Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,

concurring) (“The Court will not pass upon a

constitutional question although properly presented

by the record, if there is also present some other

ground upon which the case may be disposed of. This

30 Non-State Respondents’ Br. at 59–60 (citing N.C. Gen. Stat. §

1-267.1(a)).

Id. (citing N.C. Gen. Stat. § 120-2).

rule has found most varied application. Thus, if a case

can be decided on either of two grounds, one involving

a constitutional question, the other a question of

statutory construction or general law, the Court will

decide only the latter.”).

III.

ADOPTION

THE

ISLT

WOULD

CONTRAVENE THE U.S. FOREIGN POLICY

OBJECTIVES

THAT

ANIMATED

CONGRESSIONAL APPROVAL OF THE

ICCPR

When Congress approved the ratification of the

ICCPR, it noted that our nation’s failure to do so in the

past was “conspicuous, and in the view of many,

hypocritical” in light of our nation’s historic

commitment

universal

suffrage

and

nondiscrimination, both domestically and abroad. 32

Congress recognized that ratifying the ICCPR would

“remove doubts about the seriousness of the U.S.

commitment to human rights” and push back against

efforts to delegitimize the United States as a global

advocate for human rights, democratic selfgovernance, and the rule of law. 33 Foreign rivals have

long cited the United States’ failures to safeguard the

rights of people historically marginalized or

discriminated against based on religion, race,

Senate Comm. on Foreign Relations, Report on the

International Covenant on Civil and Political Rights, S. Exec.

Rep. No. 23, 1 (102d Sess. 1992).

Id. at 3; Kenneth Roth, Introduction, in HUMAN RIGHTS WATCH,

WORLD

REPORT

2006

(2006),

https://www.hrw.org/legacy/wr2k6/introduction/introduction.pdf

ethnicity, or other status in an effort to prevent the

American system from being held up as a global

exemplar.

The Soviet Union, for example, has

frequently tried to deflect criticism of its human rights

abuses and call into question the purported virtues of

democracy by pointing to the deeply entrenched

racism against Black people in the United States. 34

In response to these obstacles to the exercise of

American influence abroad, members of Congress

from both parties determined that it was in the

national interest to ratify the ICCPR: “By ratifying the

[ICCPR] at this time, the United States can enhance

its ability to promote democratic values and the rule

of law, not only in Eastern Europe and the successor

states of the Soviet Union but also in those countries

in Africa and Asia which are beginning to move toward

democratization.” 35 The “anti-hypocrisy” concerns

which animated the ratification of the ICCPR remain

relevant today.

Foreign rivals continue to use

allegations of hypocrisy to undermine the ability of the

United States to advocate abroad for human rights,

including democratic self-governance and the rule of

law.

Emily Couch, Why We Should Stop Portraying African

Americans as Victims in the Soviet Propaganda Game, WILSON

CTR. (Feb. 18, 2020), https://www.wilsoncenter.org/blogpost/why-we-should-stop-portraying-african-americans-victimssoviet-propaganda-game; Julia Ioffe, The History of Russian

Involvement in America’s Race Wars, ATLANTIC (Oct. 21, 2017),

https://www.theatlantic.com/international/archive/2017/10/russi

a-facebook-race/542796/.

S. Rep. No. 102-23, at 3 (1992).

A substantial amount of criticism from

authoritarian governments is aimed at asserting that

American elections do not express the free will of the

electorate. For instance, in the past year, the policy

director of the Central Committee of the Chinese

Communist Party held a press conference stating that

“[t]he electoral [democracies] of Western countries are

actually [democracies] ruled by the capital, and they

are a game of the rich, not real democracy.” 36

Congress’s goal in approving ratification of the ICCPR

remains critical in positioning the United States to

more effectively call attention to the fact that China

has not ratified the ICCPR, that it largely precludes

its citizens from participating in government decisionmaking, and that its political leadership routinely

denies its citizens’ rights without accountability. 37

In approving the ratification of the ICCPR,

Congress was motivated by the idea that the United

States could participate in the United Nation’s work

to bring other nations into compliance with their

See Evelyn Cheng, China Slams U.S. Democracy as a ‘Game of

the Rich’ at an Event Promoting Xi’s Growing Power, CNBC

(Nov.

2014),

https://www.cnbc.com/2021/11/12/chinacriticizes-us-democracy-while-promoting-xis-growingpower.html.

See S. Rep. No. 102-23, at 3 (1992) (“By ratifying the [ICCPR]

at this time, the United States can enhance its ability to promote

democratic values and the rule of law, not only in Eastern Europe

and the successor states of the Soviet Union but also in those

countries in Africa and Asia which are beginning to move toward

democratization.”); China: Third Term for Xi Threatens Rights,

RIGHTS

WATCH

(Oct.

10,

2022),

HUMAN

https://www.hrw.org/news/2022/10/10/china-third-term-xithreatens-rights.

obligations to safeguard their citizens’ human

rights. 38 The United States cannot fulfill Congress’s

stated intent to uphold its standing as an exemplar of

democratic rights and freedoms, nor can it participate

in the enforcement and compliance work of the HR

Committee, unless it fulfills its obligations

domestically.

A ruling adopting Petitioners’

interpretation of the Elections Clause would prevent

the United States from fulfilling its these obligations.

As a result, it would undermine the important

interests that Congress expressly recognized in

approving the ICCPR and hamper the United States’

ability to promote its interests and protect

fundamental human rights across the world.

Critically, if this Court were to adopt the ISLT

as Petitioners urge, the resulting failure of the United

States to uphold its obligations under the ICCPR

would not go unnoticed. The HR Committee and the

United States continue to monitor compliance with,

and implementation of, obligations under the ICCPR

through the submission of periodic reports. 39 These

reports provide the United States with a mechanism

to describe its progress in implementing and fulfilling

its obligations under the ICCPR. In anticipation of the

United States’ most recent report, the HR Committee

expressly included partisan gerrymandering in its

“list of issues,” asking the United States to “comment

on the compatibility of practices of drawing electoral

boundaries with a view to influencing election

See S. Rep. No. 102-23, at 3 (1992).

See ICCPR, supra note 2, at art. 40 (outlining the requirements

for States Parties and Committees to engage in periodic reports).

outcomes with article 25.” 40 In its fifth periodic report,

the United States responded that “[t]he drawing of

electoral boundaries in U.S. states can be challenged

in litigation filed under the U.S. Constitution or state

constitutions or under the federal Voting Rights Act or

state statutory law.” 41 The United States specifically

pointed to this Court’s decision in Arizona State

Legislature v. Arizona Independent Redistricting

Commission and a 2015 Florida Supreme Court case

that “struck down that state’s congressional

districting plan as a violation of the Fair District

amendments to the Florida constitution.” 42 But under

the theory advanced by Petitioners, these remedies

would no longer exist. See supra Section II.

Finally, “[t]he application of international law

domestically not only serves to hold the government

accountable to its people but, more importantly . . .

allows foreign nations to observe that the United

States will live up to its international obligations, thus

making other nations more willing to engage in a

cooperative relationship with the United States.” 43

This Court has previously looked to international legal

40 U.N. Human Rights Comm., List of Issues Prior to Submission

of the Fifth Periodic Report of the United States of America, U.N.

Doc CCPR/C/USA/QPR/5, ¶ 27 (Apr. 2, 2019).

41 U.N. Human Rights Comm., Fifth Periodic Report Submitted

by the United States of America Under Article 40 of the Covenant

Pursuant to the Optional Reporting Procedure, Due in 2020, U.N.

Doc. CCPR/C/USA/5, ¶ 113 (Jan. 15, 2021).

Id.

Rex D. Glensy, The Use of International Law in U.S.

Constitutional Adjudication, 25 EMORY INT’L L. REV. 197, 219

(2011).

standards, including ratified treaties, as an

interpretive guide in reading the United States

Constitution. See, e.g., Trop v. Dulles, 356 U.S. 86,

102–103 (1958) (stating that “[t]he civilized nations of

the world are in virtual unanimity that statelessness

is not to be imposed as a punishment for crime” in

support of the Court’s holding that the Eighth

Amendment bars a punishment of statelessness);

Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

(interpreting the rights of prisoners of war in light of

the United States’ obligations under its ratified

treaties on the law of war). 44 And the usage of

international law in Supreme Court jurisprudence has

not been the province of justices of any purported

partisan affiliation. 45 “The overseas trade in the

American Bill of Rights is an important means of

Examples of the Court citing to ratified treaties and

international norms as powerful authorities in its constitutional

jurisprudence abound. See, e.g., Roper v. Simmons, 543 U.S. 551,

575–78 (2005) (looking to international standards in abolishing

the juvenile death penalty); Graham v. Florida, 560 U.S. 48, 81–

82 (2010) (looking to the Convention on the Rights of the Child to

conclude that the contemporary understanding of the Eighth

Amendment did not allow sentences of life without parole for

crimes committed before age 18); Lawrence v. Texas, 539 U.S.

558, 576–77 (2003) (citing the European Court of Human Rights

to refute the claim in Bowers v. Hardwick that same-sex sexual

conduct was universally condemned).

We Are the World: The U.S.

Supreme Court’s Use of Foreign Sources of Law, 46 BRITISH J.

45 Ryan C. Black & Ryan J. Owens,

POL. SCI. 891, 902 (2016).

strengthening international human rights,” 46 and has

been since it was authored.

IV.

ADOPTION

THE

ISLT

WOULD

UNDERMINE PROTECTIONS AGAINST

PARTISAN GERRYMANDERING THAT ARE

A BULWARK AGAINST OTHER HUMAN

RIGHTS VIOLATIONS

When groups cannot exercise the right to vote

free from gerrymandering—a right guaranteed by

Congress through its approval of the ratification of the

ICCPR and ICERD—those groups are particularly

vulnerable to deprivations of other fundamental

human rights. As procedural safeguards are cast

aside, autocratic governments or leaders with such

tendencies are empowered to disenfranchise

marginalized communities, both in the United States

and abroad. Disenfranchisement is often a precursor

to additional discriminatory policies directed at

groups based on race, ethnicity, religion, or other

status. As a group’s electoral power diminishes, so

does its ability to remedy human rights violations

through participation in the democratic process. For

example, in Hungary, widespread gerrymandering

has occurred alongside the severe mistreatment of

migrants and refugees, discriminatory policies

targeting women and lesbian, gay, bisexual, and

transgender

people,

and

the

near-complete

destruction of independent media.

, The Overseas Trade in the American Bill of

Rights, 88 COLUM. L. REV. 537, 561 (1988).

46 Anthony Lester

See Lydia Gall, Hungary’s Authoritarian Leader is No Gift to

THE

HILL

(Aug.

2022),

U.S.

Conservatives,

To provide the Court with necessary context on

the potentially far-reaching negative effects that

partisan gerrymandering and similar restrictions on

the exercise of political rights can have on a wide array

of human rights, particularly for groups experiencing

discrimination based on race, ethnicity, religion, or

other status, HRW provides below a detailed

discussion of two additional recent examples, in Sri

Lanka and Iran.

In Sri Lanka, District Gerrymandering

Has Led To The Disenfranchisement Of

Religious Minorities

The institutional changes primarily led by nowousted Gotabaya Rajapaksa in Sri Lanka provide one

example of an erosion of democratic safeguards which

has had the effect of further disenfranchising religious

minorities in the majority-Buddhist country. 48 The

https://thehill.com/opinion/campaign/3585522-hungarysauthoritarian-leader-is-no-gift-to-us-conservatives/;

Farbod

Faraji & Lee Drutman, Hungary’s Viktor Orbán Can Thank the

U.S. for Facilitating His Rise to Power, CHICAGO TRIBUNE (Aug.

2022),

https://www.chicagotribune.com/opinion/commentary/ct-opinionviktor-orban-turkey-authoritarian-power-us-electoral-system20220803-erhu6pjlijgafcxj3wk5um32te-story.html (noting that

district gerrymandering in Hungary, which models that of the

United States, has helped keep Orbán in power and created an

“anti-democratic feedback loop”); HUMAN RIGHTS WATCH,

Hungary:

Events

2021,

https://www.hrw.org/worldreport/2022/country-chapters/hungary (last visited Oct. 23, 2022).

Delimitation and Its Effect on Minorities, SRI

LANKA

BRIEF

(Mar.

19,

2015),

https://srilankabrief.org/delimitation-and-its-effects-onminorities/; U.S. DEP’T OF STATE, 2021 REPORT ON

INTERNATIONAL RELIGIOUS FREEDOM: SRI LANKA (Jun. 2, 2022),

48 Shaahidah Riza,

drawing of electoral maps, known as delimitation in

Sri Lanka, 49 is a fraught issue. 50 While there have

been efforts at electoral reform aimed at proportional

representation, 51 delimitation has been seen by many

in the political and ethnic majority as a way to

consolidate power. 52 Prominent nationalists have

long called for the abolishment of provincial councils,

https://www.state.gov/reports/2021-report-on-internationalreligious-freedom/sri-lanka/; Sujata Gamage, Electoral Reform:

NMSJ Proposes Mixed Member System Within Overall PR,

TELEGRAPH

(Dec.

20,

2021),

COLOMBO

https://www.colombotelegraph.com/index.php/electoral-reformnmsj-proposes-mixed-member-system-within-overall-pr/.

49 Riza,

supra note 48.

Nambiar, Sri Lanka Supreme Court Rules Against

Provincial Council Elections Before Delimitation of Electoral

JURIST

(Sep.

2019),

Districts,

50 Varun

https://www.jurist.org/news/2019/09/sri-lanka-supreme-courtrules-against-provincial-council-elections-before-delimitation-ofelectoral-districts/ (“Delimitation has been a controversial

political issue in Sri Lanka.”).

See, e.g., Three Political Parties Suggest an Electoral System

Based on Proportional Representation for the Country, COLOMBO

PAGE

(Oct.

2021)

http://colombopage.com/archive_21B/Oct08_1633705044CH.php.

See, e.g., Provincial Councils’ Delimitation Report in the House

SUNDAY

TIMES

(Mar.

2018),

for

Debate,

https://www.sundaytimes.lk/180304/news/provincial-councilsdelimitation-report-in-the-house-for-debate-284427.html (noting

concerns raised by members of the Delimitation Committee over

Muslim representation and “unusual ethnic distribution” as a

result of the electoral redistricting).

which they view as hindering their consolidation of

power. 53

The election of Gotabaya Rajapaksa accelerated

attempts to chip away at electoral safeguards. 54

Citing COVID-19, Rajapaksa repeatedly postponed

provincial council elections in 2020, 55 amid disputes

over the delimitation of voting districts. 56 Rajapaksa

also operated for five months without legislative

See, e.g., Saman Indrajith, Gevindu Insists on Abolishing

Provincial Councils Under New Constitution, ISLAND ONLINE

(Sep. 26, 2020) https://island.lk/gevindu-insists-on-abolishingprovincial-councils-under-new-constitution/; Sri Lanka Moves

Closer Towards Abolishing Provincial Councils, EARLY TIMES

(May

16,

2013),

http://www.earlytimes.in/newsdet.aspx?q=107523.

Keenan, Sri Lanka: Landslide Win for the Rajapaksa

Puts Democracy and Pluralism at Risk, CRISIS GROUP (Aug. 12,

54 Alan

2020), https://www.crisisgroup.org/asia/south-asia/sri-lanka/srilanka-landslide-win-rajapaksa-puts-democracy-and-pluralismrisk.

Sri Lanka Decides to Postpone Provincial Elections, SOUTH

ASIAN

MONITOR

(Dec.

30,

2020),

https://www.southasiamonitor.org/sri-lanka/sri-lanka-decidespostpone-provincial-elections.

House, Sri Lanka, FREEDOM IN THE WORLD 2021,

https://freedomhouse.org/country/sri-lanka/freedom-world/2021

(last

visited Oct. 22, 2022) (“Provincial council elections were

repeatedly postponed due to disputes over the delimitation of

voting districts.”). In 2019, the Sri Lanka Supreme Court held

that the president could not unilaterally declare electoral district

boundaries in the absence of the report of a delimitations review

committee chaired by the prime minister. Nambiar, supra note

50; see also Provincial Council Elections Cannot Be Held Under

Previous System: Supreme Court, NEWS FIRST (Sep. 3, 2019),

https://www.newsfirst.lk/2019/09/03/provincial-council-electionscannot-be-held-under-previous-system-supreme-court/.

56 Freedom

oversight, exceeding the constitutional three-month

maximum for a parliamentary recess. 57 During this

period, the Rajapaksa administration created several

task forces composed almost entirely of Sinhalese

military and police officials58 and adopted a series of

policies and practices with a discriminatory impact on

Sri Lanka’s Muslim and Tamil minorities in

particular. 59 In October of 2020, the Sri Lanka

Podujana Peramuna government passed the 20th

Amendment,

which

reintroduced

expansive

Sri Lanka Headed for Elections: Democracy in

Distress?, MANOHAR PARRIKAR INST. FOR DEF. STUDIES &

57 Gulbin Sultana,

ANALYSES (Jul. 17, 2020), https://idsa.in/issuebrief/sri-lankaheaded-for-elections-gsultana-170720; Sri Lanka to Hold

Coronavirus-Delayed Election on August 5, AL JAZEERA (Jun. 11,

2020), https://www.aljazeera.com/news/2020/6/11/sri-lanka-tohold-coronavirus-delayed-election-on-august-5.

See, e.g., Gazette Extraordinary No. 2178/18 of June 2, 2020

(Sri Lanka).

Sri Lanka’s Parliamentary Elections Will

Shape Its Political Future—Likely for the Worse, NEW

59 Phillip Baumgart,

ATLANTICIST

(Jul.

30,

2020),

https://www.atlanticcouncil.org/blogs/new-atlanticist/sri-lankasparliamentary-elections-will-shape-its-political-future-likely-forthe-worse/ (“[O]ne task force is vaguely charged with creating a

“virtuous society” and eradicating “anti-social behavior,” while

another justifies the expropriation of Hindu and Muslim land in

Sri Lanka’s Eastern Province under the pretext of Buddhist

archaeological preservation.”). See C.V. Wigneswaran, Why the

Presidential Task Force on Archaeology in the Eastern Province

and the Future of the Tamils, COLOMBO TELEGRAPH (Apr. 23,

2021),

https://www.colombotelegraph.com/index.php/why-thepresidential-task-force-on-archaeology-in-the-eastern-provincethe-future-of-the-tamils/, on context into Rajapaksa’s political

objectives in creating the Buddhist archaeological preservation

task force and its discriminatory impact on Tamils populations.

presidential powers, including allowing the president

sole power to appoint commissioners to the Election

Commission as well as the power to unilaterally

dissolve parliament after two years and six months of

the Legislature being elected. 60

These actions coincided with widespread

instances of electoral violence. During the November

2019 presidential election, observers reported violence

and intimidation, mostly directed at Muslim voters. 61

A BRIEF GUIDE TO THE 20TH AMENDMENT TO THE

CONSTITUTION, CTR. FOR POLICY ALTERNATIVES (2021),

https://www.cpalanka.org/wp-content/uploads/2021/07/A-briefguide-to-the-20th-Amendment-to-the-Constitution-EnglishCPA-compressed_compressed-1.pdf; SUMMARY OF CHANGES

UNDER THE PROPOSED 20TH AMENDMENT, CTR. FOR POLICY

ALTERNATIVES, at 3, 6 (2020), https://www.cpalanka.org/wpcontent/uploads/2020/09/Final-doc-Summary-of-Changes-Underthe-Proposed-20th-Amendment.pdf; see also Sri Lanka: Newly

Adopted 20th Amendment to the Constitution is Blow to the Rule

of Law, INT’L COMM’N JURISTS (Oct. 27, 2020),

https://www.icj.org/sri-lanka-newly-adopted-20th-amendmentto-the-constitution-is-blow-to-the-rule-of-law/.

61 Aanya Wipulasena,

Day

Violations,

Sri Lanka Election: Observers Report Poll

JAZEERA

(Nov.

16,

2019),

https://www.aljazeera.com/news/2019/11/16/sri-lanka-electionSRI

LANKAN

observers-report-poll-day-violations;

2019

PRESIDENTIAL ELECTION, ELECTION OBSERVATION REPORT, CTR.

MONITORING

ELECTION

VIOLENCE

(2020),

FOR

https://anfrel.org/wp-content/uploads/2020/06/cmevpresidential-election-2019-final-report-english-3.pdf;

DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA EUR. UNION

ELECTION OBSERVATION MISSION, FINAL REPORT: PRESIDENTIAL

NOVEMBER

2019

(2020),

ELECTION,

https://www.europarl.europa.eu/cmsdata/212448/SriLanka_presidential_election_16_November_2019_EU_EOM_rep

ort.pdf.

Similarly, in the 2020 parliamentary elections, reports

indicated intimidation and harassment of women,

Muslim, and Tamil voters. 62

This electoral misconduct has been coupled

with other policies that prevent the free exercise of

religion by religious minorities in Sri Lanka. For

example, in 2020, the government imposed a

requirement to cremate anyone who died with COVID19. 63 Cremation is contrary to Muslim belief and the

policy caused immense distress to a vulnerable

minority.

The government refused to lift this

requirement for a year, despite World Health

Organization guidelines that burial is safe, and

opposition from United Nations experts, medical

professionals in Sri Lanka, and religious leaders of all

major faiths in the country. 64 When the “forced

cremation” policy was eventually dropped, it was

replaced by a restriction of burials to a single remote

House, Sri Lanka, FREEDOM IN THE WORLD 2021,

https://freedomhouse.org/country/sri-lanka/freedom-world/2021

(last

visited Oct. 22, 2022); DEMOCRATIC SOCIALIST REPUBLIC OF SRI

LANKA EUR. UNION ELECTION OBSERVATION MISSION, FINAL

REPORT: PRESIDENTIAL ELECTION, 16 NOVEMBER 2019 (2020),

https://www.europarl.europa.eu/cmsdata/212448/SriLanka_presidential_election_16_November_2019_EU_EOM_rep

ort.pdf.

62 Freedom

Sri Lanka: Covid-19 Forced Cremation of Muslims

Discriminatory, HUMAN RIGHTS WATCH (Jan. 18, 2021),

https://www.hrw.org/news/2021/01/18/sri-lanka-covid-19-forcedcremation-muslims-discriminatory.

Id.

site where grieving families were allegedly mistreated

by security personnel. 65

Similarly, local nongovernmental organizations

have reported widespread impunity surrounding

incidents of religiously-motivated discrimination and

violence against minority religious groups. 66 In ten

out of at least eleven cases of intimidation or attacks

by Buddhist groups on Christian churches in 2021,

police said the pastors were to blame for holding

worship services; in three additional cases, police

accused pastors of breaching the peace. 67 Religious

rights groups reported instances in which police

continued to prohibit, impede, and attempt to close

Christian and Muslim places of worship, citing sham

or pretextual governmental regulations. 68

Iran’s Political System Demonstrates

That Without Effective Voting Remedies,

Citizens Cannot Exercise Fundamental

Rights

Recent events in Iran similarly demonstrate

that autocratic governments without legitimate

democratic institutions often extensively violate their

citizens’ human rights. Over the past several weeks,

Iran has seen widespread anti-government protests

Id.

U.S. DEP’T OF STATE, 2021 REPORT ON INTERNATIONAL

RELIGIOUS

FREEDOM:

SRI

LANKA

(2022),

https://www.state.gov/reports/2021-report-on-internationalreligious-freedom/sri-lanka/.

Id. at 6.

Id. at 10.

following the death of 22-year-old Mahsa (Jina) Amini

after Iran’s religious morality police arrested her for

allegedly violating hijab rules. 69 “Women and girls

have been conspicuous on the front lines of the

protests,” 70 where—joined by men and boys—they

have been calling for “liberty, equality, no hijab, no

oppression.” 71 Authorities have responded to these

protests with excessive and lethal force. 72

The ability of victims to obtain recourse in the

face of such state violence is hindered in Iran, as

religious minorities and women have long been denied

See Farnaz Fassihi, In Iran, Woman’s Death After Arrest by

the Morality Police Triggers Outrage, N.Y. TIMES (Sept. 16,

2022),

https://www.nytimes.com/2022/09/16/world/middleeast/irandeath-woman-protests.html.

How Two Teenagers Became the New Faces of

N.Y.

TIMES

(Oct.

13,

2022),

Protests,

70 Farnaz Fassihi,

Iran’s

https://www.nytimes.com/2022/10/13/world/middleeast/iranprotests-killed-teens.html.

71 Khosro Kalbasi Isfahani (@KhosroKalbasi), TWITTER (Oct. 3,

2022,

9:59

AM),

https://twitter.com/KhosroKalbasi/status/1576935015492960256

; see also Bill Van Esveld & Elaheh Sajadi, In Iran, Schoolgirls

Leading Protests for Freedom: Government Repression Extends

to Children, HUMAN RIGHTS WATCH (Oct. 12, 2022),

https://www.hrw.org/news/2022/10/12/iran-schoolgirls-leadingprotests-freedom.

Iran: Security Forces Fire On, Kill Protesters, HUMAN RIGHTS

WATCH

(Oct.

2022),

https://www.hrw.org/news/2022/10/05/iran-security-forces-firekill-protesters.

equal political participation based on purported

religious justifications. 73

With the exception of a select number of

designated

seats

for

religious

minorities,

parliamentary candidates in Iran must have “belief in

and practical obligation to Islam and the holy system

of the Islamic Republic of Iran.” 74 The Guardian

Council, a powerful organization that has the power to

veto parliamentary legislation, supervise elections,

and approve or disqualify candidates, frequently

discriminates against religious minorities and women

who attempt to seek election to public positions. 75 For

example, residents of Yazd, a city in central Iran,

reelected Sepanta Niknam, who is Zoroastrian, to the

city council in May 2017. 76 Although nothing in the

election laws pertaining to city councils barred a

member of a religious minority from representing

Muslim-majority cities, the Guardian Council

requested Niknam’s immediate dismissal, and the

Court of Administrative Justice suspended him in

73 U.N. Human Rights Comm., Concluding Observations: Iran, ¶

U.N.

Doc.

CCPR/C/IRN/CO/3

(Nov.

https://digitallibrary.un.org/record/719297?ln=en.

29,

2011),

74 Law for the Elections of the Islamic Consultative Parliament

[Majles] of 1995, art. 28 (Iran).

75 HUMAN RIGHTS WATCH, ACCESS DENIED: IRAN’S EXCLUSIONARY

ELECTIONS

11–13

(2005),

https://www.hrw.org/sites/default/files/media_2021/08/202108m

ena_iraq_exlcusionaryelection.pdf.

76 Tara Sepehri Far,

Freedom,

Iran’s Guardian Council Trounces Religious

HUMAN RIGHTS WATCH

(Oct.

28,

2017),

https://www.hrw.org/news/2017/10/28/irans-guardian-counciltrounces-religious-freedom.

October 2017 over the objections of the Yazd city

council chairperson and the speaker of Iran’s

parliament. 77

The Guardian Council has also

disqualified all women from standing as candidates

for president. 78

In sum, the Guardian Council, along with other

unchecked powers in Iran’s political system, operates

under relatively few limits, and Iran’s citizens lack

effective remedies to protect their political rights. 79

The restrictions on voting rights and political

participation for religious minorities and women in

Iran have contributed to systemic patterns of

discrimination against a majority of Iran’s population.

These examples highlight that the risks to

human rights that stem from infringements on right

to vote free from gerrymandering and discrimination

are particularly severe for ethnic, racial and religious

minorities and for women and girls.

Id.

78 HUMAN RIGHTS WATCH, ACCESS DENIED: IRAN’S EXCLUSIONARY

ELECTIONS

11–13

(2005),

https://www.hrw.org/sites/default/files/media_2021/08/202108m

ena_iraq_exlcusionaryelection.pdf; see U.S. DEP’T OF STATE, 2021

COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: IRAN 50 (2021),

https://www.state.gov/reports/2021-country-reports-on-humanrights-practices/iran.

79 Freedom House, Iran, FREEDOM IN THE WORLD 2021,

https://freedomhouse.org/country/iran/freedom-world/2022 (last

visited Oct. 24, 2022).

CONCLUSION

The Petitioners’ reading of the Elections Clause

would deprive U.S. citizens whose right to vote is

restricted through gerrymandering of their last

effective remedy—judicial review by the state courts.

Adopting the ISLT would therefore cause the United

States to violate its obligations under the ICCPR and

the ICERD, would contravene Congress’s objectives in

approving those treaties, and would hamper the

United States’ ability to promote its interests and

protect fundamental human rights across the world.

Respectfully submitted,

RISHI N. ZUTSHI

Counsel of Record for Amicus

CHIHIRO ISOZAKI

ALEXIS BRAMHALL

LILIANNA REMBAR

ALEC MITCHELL

JOSEPH BRUNER

CLEARY GOTTLIEB STEEN & HAMILTON

LLP

One Liberty Plaza

New York, New York 10006

(212) 225-2000

rzutshi@cgsh.com

October 26, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.