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

GOVERNOR ARNOLD SCHWARZENEGGER

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

__________

October 26, 2022

DAVID C. FREDERICK

Counsel of Record

DANIEL V. DORRIS

MATTHEW N. DRECUN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY ......................... 2

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

I. State Constitutional Provisions Constrain States’ Exercise Of Legislative

Power Under The Elections Clause ................. 4

A. This Court’s Precedents Uphold The

Applicability Of State Constitutions ........... 4

B. Petitioners’ Independent State

Legislature Theory Would Upset

Established Precedent ................................ 9

C. Stare Decisis Should Compel This

Court To Reject Petitioners’ Invitation To Overrule Well-Established

Precedent .................................................. 12

II. States Have Legitimate Reliance Interests In Their Constitutional Provisions

That Provide Checks And Balances .............. 16

A. The Independent State Legislature

Theory Will Impede States’ Efforts

To Eliminate Partisan Gerrymanders ......... 16

B. Many States Rely On Independent

Commissions To Address Gerrymandering ................................................. 17

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

ii

TABLE OF AUTHORITIES

Page

CASES

Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n, 576 U.S. 787 (2015) ....3, 5, 6,

8, 10, 11,

12, 13, 14,

15, 16, 17, 23, 25

Assembly v. Deukmejian, 639 P.2d 939

(Cal. 1982) ............................................................ 19

Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787) ........... 13

June Med. Servs. L.L.C. v. Russo, 140 S. Ct.

2103 (2020) .....................................................12, 13

Legislature v. Reinecke:

492 P.2d 385 (Cal. 1972) .........................................19

516 P.2d 6 (Cal. 1973) ......................................... 19

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

(1916) .......................................................2, 4, 6, 10,

11, 12, 13, 16

Perez v. Mortgage Bankers Ass’n, 575 U.S. 92

(2015) ............................................................... 2, 17

Ramos v. Louisiana, 140 S. Ct. 1390 (2020)....13, 14, 15

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

(2019) .......................................................2, 3, 6, 10,

15, 16, 24, 25

Smiley v. Holm, 285 U.S. 355 (1932) ...........2, 5, 6, 10,

11, 12, 13, 14, 16

State ex rel. Martin v. Preston, 385 S.E.2d 473

(N.C. 1989) ........................................................... 13

State ex rel. Smiley v. Holm, 238 N.W. 494

(Minn. 1931)........................................................... 5

iii

Veith v. Jubelirer, 541 U.S. 267 (2004) .................... 16

Wilson v. Eu, 823 P.2d 545 (Cal. 1992) .................... 20

CONSTITUTIONS, STATUTES, AND RULES

U.S. Const.:

Art. I, § 4 (Elections Clause) ......... 2, 3, 4, 5, 6, 7, 8,

9, 10, 11, 14, 15, 17

Amend. I............................................................... 11

Amend. XIV ......................................................... 11

Amend. XIX ........................................................... 8

Ariz. Const.:

Art. IV, pt. 2, § 1, ¶¶ 3-23 ...................................... 5

Art. VII:

§ 2 (1912) .......................................................... 8

§ 15 (1912) ........................................................ 8

Cal. Const.:

Art. II:

§ 1 (1911) .......................................................... 8

§ 8 .................................................................... 22

§ 9 .................................................................... 19

Art. XXI:

§ 2 .................................................................... 21

§ 2(b) ............................................................... 24

§ 2(c)(1) ........................................................... 23

§ 2(c)(2)-(3) ...................................................... 23

§ 2(c)(4) ........................................................... 23

§ 2(c)(5) ........................................................... 24

iv

§ 2(c)(6) ........................................................... 23

§ 2(d)-(e) .......................................................... 23

§ 2(h) ............................................................... 24

Colo. Const. art. V, §§ 44.1-44.3 ............................... 24

Fla. Const. art. III, § 20(a) (Fair Districts

Amendment) .................................................... 6, 15

Idaho Const. art. VI, § II (1896) ................................. 8

Kan. Const. art. V, § 8 (1912) ..................................... 8

Mich. Const.:

Art. II, § 1 (1918) ................................................... 8

Art. IV:

§ 6(1)-(2) .......................................................... 24

§ 6(8)-(9) .......................................................... 24

§ 6(13)-(14) ...................................................... 24

Mont. Const. I, art. IV, § 2 (1914) .............................. 8

Nev. Const. art. II, § 1 (1914) ..................................... 8

N.Y. Const. art. II, § 1 (1917) ..................................... 8

N.C. Const.:

Art. II, § 1............................................................. 13

Art. IV, § 1............................................................ 13

Art. X .................................................................... 14

Art. XII ................................................................. 14

Art. XIV ................................................................ 14

Art. XIX ................................................................ 14

Art. XXXVII (1776) ................................................ 7

v

Ohio Const. art. II:

§ 1 ........................................................................... 4

§ 1c ......................................................................... 4

Okla. Const. art. III, § 1 (1918) .................................. 8

Ore. Const. art. IV, § 2 (1912) .................................... 8

S.D. Const. art. VII, § 2 (1918) ................................... 8

Utah Const. art. IV, § 1 (1896) ................................... 8

Wash. Const. art. VI, § 1, amend. V (1910)................ 8

Articles of Confederation (1777)............................. 7, 8

Art. V...................................................................... 7

Voting Rights Act of 1965, 52 U.S.C. § 10301

et seq. .................................................................... 23

Cal. Gov’t Code:

§ 8252(a) ............................................................... 23

§ 8252(e) ............................................................... 23

§ 8252(f )-(g) .......................................................... 24

§ 8253(a) ............................................................... 24

California Voters FIRST Act, Proposition 11

(2008) ..............................................................21, 22

California Voters FIRST Act for Congress,

Proposition 20 (2010)........................................... 21

Sup. Ct. R.:

Rule 37.3(a) ............................................................ 1

Rule 37.6 ................................................................ 1

vi

ADMINISTRATIVE MATERIALS

2020 California Citizens Redistricting Comm’n,

Report on Final Maps (Dec. 26, 2021),

https://bit.ly/3z9nYQR ......................................... 24

California Sec’y of State:

Statement of Vote, Nov. 4, 2008, General

Election (Dec. 2008), https://bit.ly/3gq4yAz ......... 21

Statement of Vote, Nov. 2, 2010, General

Election (rev. Jan. 2011), https://bit.ly/

3eY8VTf ............................................................... 21

Statewide Initiative Guide: 2022 (rev.

Nov. 2021), https://bit.ly/2NPWmra ................... 22

OTHER MATERIALS

Vikram David Amar & Akhil Reed Amar,

Eradicating Bush-League Arguments Root

and Branch: The Article II IndependentState-Legislature Notion and Related Rubbish, 2021 Sup. Ct. Rev. 1 (2022) .......................... 4

Angelo N. Ancheta, Redistricting Reform

and the California Citizens Redistricting

Commission, 8 Harv. L. & Pol’y Rev. 109

(2014) ........................................................19, 20, 21

Robin E. Best et al., Do Redistricting Commissions Avoid Partisan Gerrymanders?,

50 Am. Pol. Rsch. 379 (May 2022) ........................ 18

1 William Blackstone, Commentaries on the

Laws of England (1765) ...................................... 12

vii

Jason P. Casellas, Michael D. Minta & Christian R. Grose, The California Citizens

Redistricting Commission: Fair Maps,

Voting Rights, and Diversity, USC

Schwarzenegger Inst. for State & Glob.

Pol’y (2021), https://bit.ly/3TNiD9I ..................... 20

Edward-Isaac Dovere, Arnold Schwarzenegger’s War on Gerrymandering Is Just

Beginning, The Atlantic (Nov. 9, 2018),

https://bit.ly/2OPsTfE.......................................... 24

Editorial, Prop. 27 Would Strangle Redistricting Reform in the Cradle, Orange Cnty.

Register (Oct. 8, 2010) ......................................... 20

Lauren Gibbons, Let’s terminate gerrymandering, Arnold Schwarzenegger says

in Michigan, MLive (Oct. 20, 2018),

https://bit.ly/3VW5xJb......................................... 24

Christian R. Grose & Matthew Nelson,

Independent Redistricting Commissions

Increase Voter Perceptions of Fairness

(June 2021), https://bit.ly/3VU161r .................... 18

Giles Hickory (Noah Webster), Government,

The American Magazine 206 (Mar. 1788) .......... 17

Eric Lindgren & Priscilla Southwell, The

Effect of Redistricting Commissions on

Electoral Competitiveness in U.S. House

Elections, 2002-2010, 6 J. Pol. & L. 13 (2013) ......... 18

Ernest Luning, Schwarzenegger endorses

Colorado ballot measures to ‘terminate

gerrymandering,’ Colo. Springs Gazette

(Sept. 23, 2018), https://bit.ly/3z9t3ZA ............... 24

Karin Mac Donald, Adventures in Redistricting: A Look at the California Redistricting

Commission, 11 Election L.J. 472 (2012) ........... 20

viii

Eric McGhee, California’s Political Reforms: A

Brief History, Pub. Pol’y Inst. of California

(Apr. 2015), https://bit.ly/3z9m56J ....19, 20, 21, 22

Eric McGhee & Lunna Lopes, Assessing California’s Redistricting Commission: Effects

on Partisan Fairness and Competitiveness,

Pub. Pol’y Inst. of California (Mar. 2018),

https://bit.ly/3Fc30Vo .......................................... 25

Peter Miller & Bernard Grofman, Redistricting Commissions in the Western United

States, 3 U.C. Irvine L. Rev. 637 (2013) ........17, 25

Matthew Nelson, Independent Redistricting

Commissions Are Associated with More

Competitive Elections, PS: Pol. Sci. & Pol.

(2022) (forthcoming) ............................................ 18

David G. Oedel et al., Does the Introduction

of Independent Redistricting Reduce Congressional Partisanship, 54 Vill. L. Rev. 57

(2009) .............................................................. 17-18

Nathaniel A. Persily, The Peculiar Geography

of Direct Democracy: Why the Initiative,

Referendum and Recall Developed in the

American West, 2 Mich. L. & Pol’y Rev. 11

(1997) ................................................................... 22

Saikrishna B. Prakash & John C. Yoo,

The Origins of Judicial Review, 70 U. Chi.

L. Rev. 887 (2003) .................................................. 7

Nathaniel Rakich, Did Redistricting Commissions Live Up To Their Promise?,

FiveThirtyEight (Jan. 24, 2022), https://

53eig.ht/3Dr189L ................................................. 18

ix

Sara Sadhwani & Jane Junn, Structuring

Good Representation: Institutional Design

and Elections in California, PS: Pol. Sci.

& Pol. 318 (Apr. 2018) ......................................... 25

J. Fred Silva, The California Initiative

Process:

Background and Perspective,

Pub. Pol’y Inst. of California (Nov. 2000),

https://bit.ly/3TQNVfT ........................................ 22

Hayward H. Smith, Revisiting the History of

the Independent State Legislature Doctrine,

53 St. Mary’s L.J. 445 (2022) ............................ 7, 8

Nicholas O. Stephanopoulos, Communities and

the California Commission, 23 Stan. L. &

Pol’y Rev. 281 (2012) ........................................... 25

The Federalist:

No. 48 (James Madison) ........................................ 9

No. 51 (James Madison) ...................................... 26

No. 78 (Alexander Hamilton) ................................ 9

Christopher T. Warshaw et al., Districts for

a New Decade—Partisan Outcomes and

Racial Representation in the 2021–22

Redistricting Cycle, 52 Publius 428 (2022) ......... 17

INTEREST OF AMICUS CURIAE 1

Governor Arnold Schwarzenegger served as the

Governor of California from 2003 to 2011. In 2012, he

helped found the Schwarzenegger Institute for State

and Global Policy at the Sol Price School of Public

Policy, University of Southern California.

Governor Schwarzenegger experienced firsthand

the pernicious effects of partisan gerrymanders – from

never-ending redistricting disputes to the partisan

political atmosphere that results from gerrymanders.

He also has first-hand experience with state government reforms that can eliminate, or at least minimize,

partisan gerrymanders. In 2008 and 2010, Governor

Schwarzenegger successfully advocated for two ballot

initiatives, discussed infra, that established a nonpartisan redistricting commission for California’s

Legislature, Board of Equalization, and U.S. House

Members. These reforms ended decades of partisan

gerrymanders, to the benefit of California’s citizens

and political system. Governor Schwarzenegger retains

a continuing interest in the survival and success of

these reforms.

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amicus or his counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief. Pursuant to Rule 37.3(a), counsel for amicus also

represent that all parties have consented to the filing of this brief

by submitting to the Clerk letters granting blanket consent to the

filing of amicus briefs.

2

INTRODUCTION AND SUMMARY

The American constitutional tradition of checks and

balances is “informed by centuries of political thought

and experiences.” Perez v. Mortgage Bankers Ass’n,

575 U.S. 92, 116 (2015) (Thomas, J., concurring in the

judgment). Consistent with that tradition, States

have developed careful balances in their constitutions

to allocate and constrain the exercise of legislative

power under the Elections Clause in order to combat

the pernicious effects of partisan gerrymanders. And

they have relied on more than a century of this Court’s

precedent upholding their ability to do so. Among

other checks and balances, ten States now assign

congressional redistricting to commissions that are

less beholden to self-interested partisan politicians

and that are prohibited by law from enacting partisan

gerrymanders. This Court favorably cited these

independent commissions as a way in which States

are “actively addressing” the problems of “excessive

partisan gerrymandering.” Rucho v. Common Cause,

139 S. Ct. 2484, 2507 (2019).

Petitioners’ theory of the Elections Clause posits

that state legislatures may act independently of these

state constitutional provisions when exercising powers

under the Elections Clause. This theory would eliminate state efforts to curtail partisan gerrymandering,

imperiling the checks and balances needed for a

functioning redistricting process that places voters’

interests over legislators’. It would upset this Court’s

longstanding precedent upholding States’ checks and

balances on the exercise of legislative power for congressional redistricting – through popular referenda,

gubernatorial vetoes, and independent redistricting

commissions. See Ohio ex rel. Davis v. Hildebrant, 241

U.S. 565 (1916); Smiley v. Holm, 285 U.S. 355 (1932);

3

Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787 (2015). And the theory

itself is incoherent and standardless. It admits that

some state constitutional provisions continue to apply

to States’ exercise of powers under the Elections

Clause but arbitrarily excludes other provisions.

This Court should adhere to its precedents upholding state-level checks and balances because those

precedents were correctly decided, they have engendered significant reliance by States that have organized their self-governance around them, and our

political system would suffer harm if partisan gerrymanders were left entirely without state-level checks

and balances.

The California Citizens Redistricting Commission –

the type of commission cited favorably in Rucho –

illustrates why. As Governor of California, amicus

Arnold Schwarzenegger took the lead in urging voters

to approve the constitutional amendments creating

the Commission so that California could move beyond

a shameful history of partisan gerrymandering that

yielded frequent deadlocks, embroiled courts, and disserved the public. Millions of Californians voted to

create this Commission. It has improved California’s

maps by neutral standards, while avoiding the selfserving map-drawing and partisan conflicts of past redistricting cycles. In 2021, the Commission – with five

Republican, five Democratic, and four independent

commissioners – unanimously approved the State’s

legislative maps. Petitioners’ Elections Clause theory

would call into serious question this well-functioning

body and create the specter that California would

have to revert to the divisive and dysfunctional

redistricting process of the past. This Court should

reject that theory and affirm the decision below.

4

ARGUMENT

I. State Constitutional Provisions Constrain

States’ Exercise Of Legislative Power Under

The Elections Clause

A. This Court’s Precedents Uphold The

Applicability Of State Constitutions

1. The Elections Clause provides that “[t]he

Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in

each State by the Legislature thereof.” U.S. Const.

art. I, § 4. The text of that provision is silent as

to whether other sources of state law may constrain

“the Legislature thereof ” in the exercise of its powers.

But this Court’s precedents are not silent. In three

cases spanning a century, this Court has held that

“the [state] Legislature thereof ” is bound by state

constitutional provisions. These decisions reflect the

fundamental principle that a state legislature is “an

entity created and constrained by the state constitution.” Vikram David Amar & Akhil Reed Amar, Eradicating Bush-League Arguments Root and Branch:

The Article II Independent-State-Legislature Notion

and Related Rubbish, 2021 Sup. Ct. Rev. 1, 19 (2022).

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

(1916), this Court rejected an Elections Clause challenge to an Ohio constitutional provision allowing the

people to vote down congressional redistricting plans

by popular referendum. See id. at 566-67; Ohio Const.

art. II, §§ 1, 1c. This Court explained that “the referendum constituted a part of the state Constitution and

laws, and was contained within the legislative power.”

241 U.S. at 567-68. The state constitutional referendum provision thus constrained the State’s exercise of

power under the Elections Clause.

5

In Smiley v. Holm, 285 U.S. 355 (1932), the Minnesota Supreme Court had adopted the independent

state legislature theory that is advanced here to reject

a gubernatorial veto of a congressional redistricting

plan. See id. at 365 (“ ‘The word “legislature” has

reference to the well-recognized branch of the state

government . . . and when the framers of the Federal

Constitution employed this term, we believe they

made use of it in the ordinary sense with reference to

the official body invested with the functions of making

laws, the legislative body of the state; and that they

did not intend to include the state’s chief executive as

a part thereof.’ ”) (quoting State ex rel. Smiley v. Holm,

238 N.W. 494, 499 (Minn. 1931)). This Court reversed

because neither the text of the Elections Clause nor

the original intent behind that provision displaced the

principle that “the exercise of the [state legislative]

authority must be in accordance with the method

which the state has prescribed for legislative enactments.” Id. at 367, 369-70.

And, finally, in Arizona State Legislature v. Arizona

Independent Redistricting Commission, 576 U.S. 787

(2015), this Court upheld an Arizona constitutional

provision (enacted by popular ballot) that “remove[d]

congressional districting authority from the state

legislature, lodging that authority, instead, in a

new entity,” the Arizona Independent Redistricting

Commission. Id. at 796-97; see Ariz. Const. art. IV,

pt. 2, § 1, ¶¶ 3-23. There, both the majority and Chief

Justice Roberts’ dissent agreed that state constitutional provisions may properly constrain the exercise

of States’ legislative powers under the Elections

Clause. See Arizona State Legislature, 576 U.S. at

816-17 (majority) (“[I]t is characteristic of our federal

system that States retain autonomy to establish their

own governmental processes.”); id. at 841-42 (Roberts,

6

C.J., dissenting) (agreeing with the “straightforward

rule” that “ ‘the Legislature’ is a representative body

that, when it prescribes election regulations, may

be required to do so within the ordinary lawmaking

process” as set forth in the state constitution) (emphasis added).

Recently, in Rucho v. Common Cause, 139 S. Ct.

2484 (2019), this Court relied on that principle from

those prior decisions. This Court explained that its

decision regarding the non-justiciability of federal

constitutional challenges to partisan gerrymanders

did not “condemn complaints about districting to echo

into a void” because “States . . . are actively addressing

the issue on a number of fronts.” Id. at 2507 (emphasis added). The Court proceeded to cite favorably state

constitutional provisions affecting States’ exercise of

legislative power under the Elections Clause, including voter-approved constitutional provisions prohibiting gerrymandering, see, e.g., Fla. Const. art. III,

§ 20(a) (“No apportionment plan or individual district

shall be drawn with the intent to favor or disfavor a

political party or an incumbent . . . .”), and creating

independent redistricting commissions like the one in

Arizona State Legislature. See Rucho, 139 S. Ct. at

2507 (citing voter-approved commissions in Colorado

and Michigan).

2. Davis, Smiley, and Arizona State Legislature

were correctly decided, and Rucho persuasively relied

upon state-level innovations to combat partisan gerrymanders. The principle of those decisions – that

States’ legislative powers are created and constrained

by state constitutions – is consistent with the Framers’ original intent and with historical practice shortly

before enactment of the Constitution.

7

At the time of the Constitution’s enactment in 1787,

the Nation was operating under the Articles of Confederation, which had a similarly worded predecessor

to the Elections Clause. The Articles of Confederation

provided that “delegates” to the Congress “shall be

annually appointed in such manner as the legislatures

of each State shall direct.” Articles of Confederation

art. V. The contemporaneous understanding of this

provision was that state legislatures were constrained

by their state constitutions when selecting delegates

to the Continental Congress that promulgated the

Articles of Confederation. Ten of 11 state constitutions – including North Carolina – in effect in the

period 1776 to 1787 imposed such constraints. See

N.C. Const. art. XXXVII (1776) (“That the Delegates

for this State, to the Continental Congress while

necessary, shall be chosen annually by the General

Assembly, by ballot; but may be superseded, in the

mean time, in the same manner; and no person shall

be elected, to serve in that capacity, for more than

three years successively.”); Hayward H. Smith, Revisiting the History of the Independent State Legislature

Doctrine, 53 St. Mary’s L.J. 445, 476-80 & n.152

(2022); Non-State Resp. Br. 29 & n.2. Moreover,

during this period, there was a prevailing practice

and view that these constitutional constraints would

be enforced through judicial review. See Saikrishna

B. Prakash & John C. Yoo, The Origins of Judicial

Review, 70 U. Chi. L. Rev. 887, 929-39 (2003) (surveying public sentiment and seven States that recognized

judicial review by 1787).

The Elections Clause – drafted in 1787 – closely

mirrors the text of Article V of the Articles of Confederation. Compare U.S. Const. art. I, § 4 (electoral

regulations “shall be prescribed in each State by the

Legislature thereof ”), with Articles of Confederation

8

art. V (delegates “appointed in such manner as the

legislatures of each State shall direct”). As this Court

has noted, whether the Elections Clause imposed

limitations on “the legislative processes by which the

States could exercise their initiating role in regulating

congressional elections occasioned no debate” by the

Framers. Arizona State Legislature, 576 U.S. at 816.

The Framers’ choice of nearly identical language for

the Elections Clause as Article V of the Articles of

Confederation indicates they intended the established

understanding of Article V to carry forward with the

Elections Clause.

That is what happened. In the decades following the

Constitution’s enactment, the large majority of state

constitutions constrained state legislatures’ exercise

of power under the Elections Clause. See Non-State

Resp. Br. 31-33; Smith, 53 St. Mary’s L.J. at 484-92.

That practice continued throughout the 1800s. See id.

at 505-09, 525-28. As but one more-recent example,

13 States adopted women’s suffrage by constitutional

amendment in advance of the Nineteenth Amendment. Those venerable efforts would have been

unconstitutional under petitioners’ theory.2

More generally, the independent state legislature

theory also would have been antithetical to the Framers’ prevailing views. The Framers well understood

the necessity of retaining checks and balances on the

Legislature: “it is against the enterprising ambition

2 See Idaho Const. art. VI, § II (1896); Utah Const. art. IV, § 1

(1896); Wash. Const. art. VI, § 1, amend. V (1910); Cal. Const.

art. II, § 1 (1911); Ariz. Const. art. VII, §§ 2, 15 (1912);

Kan. Const. art. V, § 8 (1912); Ore. Const. art. IV, § 2 (1912);

Mont. Const. I, art. IV, § 2 (1914); Nev. Const. art. II, § 1 (1914);

N.Y. Const. art. II, § 1 (1917); Mich. Const. art. II, § 1 (1918);

Okla. Const. art. III, § 1 (1918); S.D. Const. art. VII, § 2 (1918).

9

of this department, that the people ought to indulge all

their jealousy, and exhaust all their precautions.” The

Federalist No. 48 (James Madison). And they viewed

judicial enforcement of constitutional constraints as

“keep[ing] the [legislature] within the limits assigned

to [its] authority.” The Federalist No. 78 (Alexander

Hamilton); see id. (“[W]here the will of the legislature,

declared in its statutes, stands in opposition to that

of the people, declared in the Constitution, the judges

ought to be governed by the latter rather than the

former.”). There is no basis to believe the Framers

abandoned those views and the contemporaneous

practices of States to single out the Elections Clause

as an instance in which legislatures were granted

exclusive powers without checks and balances, and

did so without any recorded debate.

B. Petitioners’ Independent State Legislature

Theory Would Upset Established Precedent

Petitioners urge this Court to adopt the independent

state legislature theory of the Elections Clause. See

Pet. Br. 4 (“[I]nherently legislative decisions about the

manner of federal elections in a State are committed

to ‘the Legislature thereof.’ ”); see id. (Constitution

“place[s] the regulation of federal elections in the

hands of state legislatures, Congress, and no one

else”). In petitioners’ view, “[a]ny delegation” of a

state legislature’s “authority to regulate congressional

elections” to another entity is “unconstitutional under

the Elections Clause.” Id. at 12. Thus, the only “check

against any potential abuse” by a state legislature is

“congressional review.” Id. at 18.3

3 See also Pet. Br. 17 (“state constitutions [cannot] impose

substantive limits on the legislature’s authority”); id. at 21 (state

“judicial review” of redistricting “reallocate[s] a portion of the

authority assigned specifically to its legislature by the federal

10

Petitioners’ theory cannot be squared with this

Court’s longstanding precedent that faithfully implements the Framers’ intent. Their theory means that

the citizens of a State cannot override the Legislature’s congressional map by popular referendum,

contrary to Davis v. Hildebrandt; a governor cannot

veto a Legislature’s congressional map, contrary to

Smiley v. Holm; and voters cannot assign congressional redistricting to an independent commission,

contrary to Arizona State Legislature. Indeed, the

theory renders States incapable of imposing any

constitutional restraints on their Legislatures’ natural

proclivity to gerrymander, contrary to Rucho’s recognition of the many such innovative ways States have

been “actively addressing” those problems. 139 S. Ct.

at 2507.

Petitioners attempt to avoid the inevitable consequences of the independent state legislature theory

by making a remarkable concession. They “do not

dispute that each State’s constitution may properly

govern such procedural questions as whether a bicameral vote is required to enact a law, whether the legislation is subject to gubernatorial veto, and, perhaps

in the extreme case, whether some lawmaking entity

other than the ordinary institutional legislature has

authority to legislate on the subject.” Pet. Br. 24

(citation omitted). Petitioners must make this concession because, as they acknowledge, “the federal

Constitution and parceled it out instead to its courts”); id. at

23-24 (state legislatures’ exercise of power under the Elections

Clause “cannot be controlled by the constitution and laws of the

respective states”) (internal quotation marks omitted); id. at 39

(“[T]he power to regulate federal elections lies with State legislatures alone, and the Clause does not allow the state courts, or any

other organ of state government, to second-guess the legislature’s

determinations.”).

11

Constitution . . . of course does not create the state legislatures themselves.” Id. State constitutions (enacted

by the people) decide which bodies exercise legislative

powers and what constraints are imposed on those

legislative bodies – as this Court held in Davis,

Smiley, and Arizona State Legislature.

Having conceded that some state constitutional

provisions must continue to apply to States’ exercise

of legislative powers under the Elections Clause,

petitioners have no basis to exclude other state constitutional provisions. They seek to draw a distinction

between state constitutional provisions that concern

“procedural questions” (permissible) and those that

impose “substantive limits” (impermissible). Id. at 2425. But they offer no coherent theory to justify that

distinction or standards to evaluate the constitutionality of future limits. Their argument “begin[s]”

and “end[s]” with the text of the Elections Clause,

id. at 13, and the text of that Clause does not draw

any distinction between “procedure” and “substance.”

Nor do petitioners cite any historical support for their

distinction.

The distinction would lead to absurd textual inconsistencies within the Elections Clause. The first

half of the clause provides that electoral regulations

“shall be prescribed in each State by the Legislature

thereof,” and the second half provides “Congress may

at any time by Law make or alter such Regulations.”

U.S. Const. art. I, § 4. There is no reason why

petitioners’ distinction would not apply to both halves

of the Elections Clause. And, if that is so, Congress

could “make or alter” electoral regulations unbounded

by any “substantive” provision in the rest of the

federal Constitution – presumably including the First

and Fourteenth Amendments.

12

Nor do petitioners provide a workable rule for dividing “procedure” from “substance.” They argue that

state judicial review of congressional redistricting

“seizes the power to regulate the manner of congressional elections,” Pet. Br. 49, and thus falls on the

“substance” side of the ledger. But judicial review

no less “seizes the power to regulate” than a governor

vetoing a map, the public rejecting a map by referendum, or the public vesting congressional redistricting

power in an independent commission by initiative –

all of which supposedly fall on the “procedure” side of

the ledger. Petitioners’ dividing line has no guiding

principle; it is drawn solely to achieve their desired

outcome here.

C. Stare Decisis Should Compel This Court To

Reject Petitioners’ Invitation To Overrule

Well-Established Precedent

This Court should reject petitioners’ invitation to

overrule longstanding precedent “[t]o the extent” it “is

not distinguishable.” Pet. 40 n.9. This Court should

be guided by stare decisis, “ ‘an established rule to

abide by former precedents, where the same points

come again in litigation; as well to keep the scale of

justice even and steady, and not liable to waver with

every new judge’s opinion.’ ” June Med. Servs. L.L.C.

v. Russo, 140 S. Ct. 2103, 2134 (2020) (Roberts, C.J.,

concurring in the judgment) (quoting 1 William Blackstone, Commentaries on the Laws of England 69

(1765)). This “[r]espect for precedent promotes the

evenhanded, predictable, and consistent development

of legal principles, fosters reliance on judicial decisions,

and contributes to the actual and perceived integrity

of the judicial process.” Id. (internal quotation marks

omitted).

“The question today . . . is not whether” Davis,

Smiley, and Arizona State Legislature were “right

13

or wrong, but whether to adhere to [them] in deciding

the present case.” Id. at 2133. “[F]or precedent

to mean anything, the doctrine must give way only to

a rationale that goes beyond whether the case was

decided correctly.” Id. at 2134.

To overrule this Court’s precedents, there must be

a “special justification”; that remains true even for

constitutional decisions where “the doctrine of stare

decisis is not as ‘inflexible.’ ” Ramos v. Louisiana, 140

S. Ct. 1390, 1413 (2020) (Kavanaugh, J., concurring in

part). “[T]hree broad considerations . . . help guide the

inquiry and help determine what constitutes a ‘special

justification’ or ‘strong grounds’ to overrule a prior

constitutional decision.” Id. at 1414. Each of these

considerations weighs against petitioners.

First, Davis, Smiley, and Arizona State Legislature

are not “grievously or egregiously wrong.” Id. They

stand on the firm principle that a State may enact

constitutional checks and balances on the exercise

of the State’s legislative power. That principle is

“workab[le],” id. at 1414-15, and guides the proper

result in this case. North Carolina’s Constitution

“vest[s]” the “legislative power” in the “General

Assembly,” N.C. Const. art. II, § 1, and the “judicial

power” in “a General Court of Justice,” id., art. IV, § 1.

That judicial power includes “judicial review” of state

legislative actions for compliance with the state

constitution. See State ex rel. Martin v. Preston, 385

S.E.2d 473, 478 (N.C. 1989) (citing Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)). The North Carolina

Supreme Court acted consistently with this constitutional structure when it held the congressional re-

14

districting plan violated Articles X, XII, XIV, and XIX

of North Carolina’s Constitution.4

Petitioners attempt to show that their theory of the

Elections Clause best accords with its original intent.

See Pet. Br. 25-39. But their claim (at 26) that “no

State [constitution] appears to have imposed . . . rules

governing congressional districts” is inaccurate. See

supra pp. 7-9. Respondents thoroughly demonstrate

the flaws in petitioners’ arguments. See Non-State

Resp. Br. 28-41; State Resp. Br. 38-49. At the very

least, this Court’s reading of that historical evidence

in Smiley and Arizona State Legislature was not grievously or egregiously wrong. See Arizona State Legislature, 576 U.S. at 814-19; Smiley, 285 U.S. at 369-70.

Second, these decisions have not “caused significant

negative jurisprudential or real-world consequences.”

Ramos, 140 S. Ct. at 1415 (Kavanaugh, J., concurring

in part). These decisions allow States to impose

checks and balances on congressional redistricting.

These checks – particularly voter-approved state

constitutional provisions like California’s independent

redistricting commission – express the will of the

people, which are “the font of governmental power.”

Arizona State Legislature, 576 U.S. at 819. That is a

positive consequence of this Court’s decisions that

should not be disturbed. See infra pp. 23-26.

But there would be serious negative consequences to

adopting the independent state legislature theory.

That theory deprives States of any ability to enact

meaningful checks and balances on congressional

redistricting to prevent harmful gerrymanders that

4 The North Carolina Supreme Court also acted permissibly in

drawing its own remedial congressional map. See State Resp. Br.

23-26; Non-State Resp. Br. 58-61; Chief Justices Br. 17-18.

15

prioritize partisan advantage or incumbent protection.

See infra pp. 16-17. Virtually all the States’ methods

for “actively addressing” those gerrymanders discussed in Rucho would be rendered unconstitutional.

See 139 S. Ct. at 2507 (citing state constitutional

constraints like Florida’s Fair Districts Amendment

and independent redistricting commissions). The States

could no longer serve their “ ‘role . . . as laboratories

for devising solutions to difficult legal problems’ ” like

partisan gerrymandering. Arizona State Legislature,

576 U.S. at 817 (citation omitted).5

Third, overruling these prior precedents would

“unduly upset reliance interests.” Ramos, 140 S. Ct.

at 1415 (Kavanaugh, J., concurring in part). Many

States have longstanding constitutional provisions

that carefully allocate and constrain the exercise of

state legislative power under the Elections Clause.

Voiding those constitutional provisions will spawn

litigation about the validity of the congressional maps

currently in use. It will cause great uncertainty in upcoming election cycles about where congressional lines

fall. This would be extraordinarily disruptive at any

time but especially so shortly on the heels of the 2020

decennial redistricting cycle. If existing congressional

maps are invalid, new maps may need to be redrawn

for a second time in a matter of years wherever state

constitutional provisions have constrained the state

legislature’s redistricting power.

5 Numerous other state constitutional provisions affecting

voting would also be jettisoned. See Arizona State Legislature,

576 U.S. at 822-23 (citing provisions addressing “voting by ‘ballot’

or ‘secret ballot,’ voter registration, absentee voting, vote counting, and victory thresholds”) (footnotes omitted).

16

II. States Have Legitimate Reliance Interests

In Their Constitutional Provisions That

Provide Checks And Balances

Overruling any of Davis, Smiley, and Arizona State

Legislature would cause significant harm to our political system and the legitimate reliance interests of

States and voters in those precedents.

A. The Independent State Legislature Theory

Will Impede States’ Efforts To Eliminate

Partisan Gerrymanders

Partisan gerrymanders threaten our political

system. They are “incompatib[le] . . . with democratic

principles.” Veith v. Jubelirer, 541 U.S. 267, 292

(2004) (plurality) (Scalia, J.); see also Rucho, 139 S. Ct.

at 2506 (“[partisan] gerrymandering is ‘incompatible

with democratic principles’ ”) (quoting Arizona State

Legislature, 576 U.S. at 791). Instead of voters

“participat[ing] equally in the political process . . . to

choose their political representatives,” self-interested

politicians “entrench themselves in office” by choosing

their voters. Id. at 2509 (Kagan, J., dissenting).

This insulates incumbents in safe districts, minimizes

electoral competition, and heightens partisanship.

State reforms to combat partisan gerrymandering

cannot be effective if they cannot impose checks

and balances on a self-interested state legislature’s

congressional redistricting powers – as did the referendum in Davis, the veto in Smiley, the independent

commission in Arizona State Legislature (and California), and the state constitutional constraints cited favorably in Rucho. See Arizona State Legislature, 576 U.S.

at 824 (commission “sought to restore the core principle of republican government, namely, that the voters

should choose their representatives, not the other way

around”) (internal quotation marks omitted).

17

This need for checks and balances on state legislatures is “informed by centuries of political thought

and experiences.” Perez v. Mortgage Bankers Ass’n,

575 U.S. 92, 116 (2015) (Thomas, J., concurring in the

judgment). The Framers who crafted the Elections

Clause, along with the rest of our Constitution,

gleaned lessons from Revolution-era state constitutions that did not constrain their state legislatures

with checks and balances. See id. at 117-18. They

knew well the “ ‘many legal infractions of sacred

right’ ” and “ ‘many wanton abuses of legislative

powers’ ” that occur when state legislatures are left

unchecked. Id. at 117 n.3 (quoting Giles Hickory

(Noah Webster), Government, The American Magazine 206 (Mar. 1788)). But the independent state

legislature theory rejects any state check or balance.

B. Many States Rely On Independent Commissions To Address Gerrymandering

In reliance on this Court’s precedents, ten States

have adopted nonpartisan or bipartisan commissions

independent of legislatures to draw their congressional maps. See Christopher T. Warshaw et al.,

Districts for a New Decade—Partisan Outcomes and

Racial Representation in the 2021–22 Redistricting

Cycle, 52 Publius 428, 436 tbl.1 (2022). Studies have

shown that these independent commissions have

significant benefits. Independent commissions “generally produce less biased and more competitive plans

than when one party controls the process” and “ensure

a consistent process from one redistricting cycle to the

next,” id. at 447; see Arizona State Legislature, 576

U.S. at 798 (citing Peter Miller & Bernard Grofman,

Redistricting Commissions in the Western United

States, 3 U.C. Irvine L. Rev. 637, 661, 663-64 (2013)),

while also reducing the partisanship of congressional

representatives, see David G. Oedel et al., Does the

18

Introduction of Independent Redistricting Reduce

Congressional Partisanship, 54 Vill. L. Rev. 57, 87

(2009). Recent studies based on more robust data

show that “independent commissions are 2.25 times

more likely to have competitive elections and decrease

incumbent party wins by 52%.” Matthew Nelson,

Independent Redistricting Commissions Are Associated with More Competitive Elections, PS: Pol. Sci. &

Pol. at 1 (2022) (forthcoming).6

California’s commission is a model example of

the success of these state reforms. Californians

enacted the commission by ballot initiative to do away

with decades of partisan gerrymanders. Governor

Schwarzenegger was a strong proponent of the ballot

initiative for the same reason that it resonated with

6 See also Robin E. Best et al., Do Redistricting Commissions

Avoid Partisan Gerrymanders?, 50 Am. Pol. Rsch. 379 (May 2022)

(preprint at 16-17) (“[s]ubstantial evidence suggests redistricting

commissions do a good job delivering on the charges they have

been given—e.g., meeting population equality, drawing contiguous and reasonably compact districts, preserving jurisdictional

boundaries, and creating competitive districts,” and independent

commissions designed like California’s also “can work to avoid a

[partisan] gerrymander”); Nathaniel Rakich, Did Redistricting

Commissions Live Up To Their Promise?, FiveThirtyEight (Jan.

24, 2022) (“According to two common measures of map fairness,

congressional maps enacted by commissions (or courts that took

over from failed commissions) have been less biased than those

that have emerged from legislatures.”), https://53eig.ht/3Dr189L;

Christian R. Grose & Matthew Nelson, Independent Redistricting

Commissions Increase Voter Perceptions of Fairness (June 2021)

(finding “[i]ndependent redistricting commissions cause voters

to perceive the process as fairer”), https://bit.ly/3VU161r; Eric

Lindgren & Priscilla Southwell, The Effect of Redistricting Commissions on Electoral Competitiveness in U.S. House Elections,

2002-2010, 6 J. Pol. & L. 13, 16 (2013) (independent commissions

“led to margins of victory that are on average over 10-12 points

closer than those districts redrawn under the traditional legislative process”).

19

millions of Californians: the Commission would vest

the power to create electoral districts in an independent commission consisting of qualified citizens that

do not depend on gerrymanders to obtain their office.

Before the Commission, California was like many

other States. Every decennial census brought a new

opportunity to re-gerrymander the State’s electoral

districts to entrench one political party. Not only did

these gerrymanders hurt California politics, but they

tied up state courts for years.

After the 1970 Census, the Democratic legislature

and Republican governor deadlocked, leading the

California Supreme Court to appoint special masters

to draw the maps after two years of stalemate and

one election cycle without any redrawn maps after

a census. See Legislature v. Reinecke, 516 P.2d 6

(Cal. 1973); Legislature v. Reinecke, 492 P.2d 385

(Cal. 1972); Eric McGhee, California’s Political Reforms:

A Brief History, Pub. Pol’y Inst. of California, App’x

A at 1 (Apr. 2015) (“McGhee, California’s Political

Reforms”), https://bit.ly/3z9m56J.

After the 1980 Census, a Democratic legislature

and governor passed maps, “squeez[ing] every last

Democratic seat [they] could out of the process.”

McGhee, California’s Political Reforms, App’x A at 1.

But voters used their referendum power to reject the

maps, requiring the legislature to redraw the maps

“in the middle of the campaign season.” Id.; see Cal.

Const. art. II, § 9 (referendum power); see also Angelo

N. Ancheta, Redistricting Reform and the California

Citizens Redistricting Commission, 8 Harv. L. & Pol’y

Rev. 109, 112 (2014). The California Supreme Court

eventually was forced to draw temporary districts

for the 1982 election. See Assembly v. Deukmejian,

639 P.2d 939 (Cal. 1982).

20

The 1990 Census was followed by a recurrence of the

impasse in the 1970s, with a Republican governor

vetoing a Democratic legislature’s maps and the state

supreme court needing to intervene by appointing

special masters to draw maps. See Wilson v. Eu, 823

P.2d 545 (Cal. 1992) (after veto, failed veto override,

and legislative recess, court appointed retired judges

as special masters to create maps); McGhee, California’s Political Reforms, App’x A at 4; Ancheta, 8 Harv.

L. & Pol’y Rev. at 112.

The map-drawing after the 2000 Census failed in a

different way: an “incumbency-protective ‘bipartisan

gerrymander,’ ” Ancheta, 8 Harv. L. & Pol’y Rev. at

114, in which legislators reached “a deal . . . that

largely preserved the status quo by making districts

less competitive, especially for Congress, while

seeming to satisfy no one but the authors,” McGhee,

California’s Political Reforms 7.7 This gerrymander

harmed voters by maximizing the protection of incumbents, while diluting the voting power of California’s

increasing numbers of voters of color. See Jason P.

Casellas, Michael D. Minta & Christian R. Grose,

The California Citizens Redistricting Commission:

Fair Maps, Voting Rights, and Diversity, USC

Schwarzenegger Inst. for State & Glob. Pol’y, at 12-13

(2021), https://bit.ly/3TNiD9I.

7 To illustrate the process following the 2000 Census: a

U.S. Representative’s brother charged California members

of Congress $20,000 each to draw good seats, one of whom

explained that $20,000 was a good investment compared to the

$2 million typically spent on a reelection campaign. See Karin

Mac Donald, Adventures in Redistricting: A Look at the California Redistricting Commission, 11 Election L.J. 472, 482 & n.71

(2012) (citing Editorial, Prop. 27 Would Strangle Redistricting

Reform in the Cradle, Orange Cnty. Register (Oct. 8, 2010)).

21

After decades of flawed redistricting, Californians

decided that they had had enough. In 2008, California

voters approved Proposition 11, the Voters FIRST Act,

which created the Commission to conduct redistricting for the California State Assembly, Senate, and

Board of Equalization. See Cal. Const. art. XXI, § 2;

Ancheta, 8 Harv. L. & Pol’y Rev. at 114. In 2010,

California voters approved Proposition 20, the Voters

FIRST Act for Congress, extending the Commission’s

authority to redistricting for the State’s congressional

seats. See Ancheta, 8 Harv. L. & Pol’y Rev. at 115.

More than six million Californians voted in favor

of the independent redistricting process in 2008.

See California Sec’y of State, Statement of Vote,

Nov. 4, 2008, General Election 13 (Dec. 2008),

https://bit.ly/3gq4yAz. Two years later, the independent redistricting commission’s authority was extended

to congressional elections by a large margin (61% to

39%). See California Sec’y of State, Statement of Vote,

Nov. 2, 2010, General Election 18 (rev. Jan. 2011),

https://bit.ly/3eY8VTf. In the same election, a similarly large margin rejected Proposition 27 that would

have repealed the Commission and returned redistricting to the Legislature. See id.

Propositions 11 and 20 succeeded because their supporters built “a broad bipartisan coalition before going

to the voters.” McGhee, California’s Political Reforms

2, 13, 24-25. The successful votes in 2008 and 2010

followed decades of unsuccessful efforts to win voter

approval of redistricting bodies independent of the

California Legislature. See Ancheta, 8 Harv. L. &

Pol’y Rev. at 113-14 (describing failed propositions

in 1982, 1984, 1990, and 2005); McGhee, California’s

Political Reforms, App’x A at 2-6 (same). In these past

instances, voters discerned a partisan valence to each

22

proposition, with the Republican Party in favor and

the Democratic Party opposed. See McGhee, California’s Political Reforms, App’x A at 2-6. Unlike these

prior unsuccessful propositions, Proposition 11 was

drafted by “an extraordinarily wide range of potential

stakeholders, including Republicans, Democrats,

business, unions, civil rights organizations, and good

government groups,” involving both supporters and

opponents of the failed 2005 proposition. See McGhee,

California’s Political Reforms 24. Its drafters learned

from the prior failures, replacing a reliance on judicial

and partisan actors with citizen members, carefully

screened to eliminate possible connections to political

officeholders.

In approving the Commission, California voters

exercised their initiative power enshrined in the

California Constitution. See Cal. Const. art. II, § 8.

The initiative power dates to 1911, when California’s

then-Governor promised voters he would create it,

the Legislature placed the proposed constitutional

amendment on the ballot, and voters approved it. See

California Sec’y of State, Statewide Initiative Guide:

2022, at i (rev. Nov. 2021), https://bit.ly/2NPWmra;

J. Fred Silva, The California Initiative Process: Background and Perspective, Pub. Pol’y Inst. of California,

at 1 (Nov. 2000) (1911 amendment “gave the voters a

power equal to the power of [the] legislative branch of

state government”), https://bit.ly/3TQNVfT.8

8 California’s constitutional reform in the early twentieth

century was part of a broader movement across the western

States to place greater legislative power in the hands of voters.

See Nathaniel A. Persily, The Peculiar Geography of Direct

Democracy: Why the Initiative, Referendum and Recall Developed in the American West, 2 Mich. L. & Pol’y Rev. 11, 27 (1997)

(“Progressives in the new states of the West sought to divest their

legislatures of their monopoly on policy-making authority.”).

23

The Commission has imposed valuable checks and

balances that protect voters’ rights and interests:

 The Commission must use neutral redistricting

criteria. See Cal. Const. art. XXI, § 2(d)-(e) (requiring districting according to equal population;

then Voting Rights Act compliance; then contiguity; then geographic integrity of cities, counties,

and communities of interest; then compactness;

then “nesting,” i.e., forming Senate districts out

of Assembly districts and Board of Equalization

districts out of Senate districts; while prohibiting

consideration of incumbents’ and candidates’

residences and partisan advantage).

 “The selection process” for the Commission

“is designed to produce a commission that is

independent from legislative influence.” Cal.

Const. art. XXI, § 2(c)(1); see id. § 2(c)(2)-(3)

(14 members, of which five are from the largest

party by registration, five from the secondlargest, and four unaffiliated); id. § 2(c)(4) (single

terms); id. § 2(c)(6) (barring commissioners from

holding elective office for ten years or appointive

office, paid staff positions, or paid consultancies

for five years); Cal. Gov’t Code § 8252(a) (selection

process overseen by State Auditor).9

Arizona’s ballot-proposition mechanism, used a century later

to create the Arizona Independent Redistricting Commission,

traces to the same constitutional reform era. See Arizona State

Legislature, 576 U.S. at 793-96.

9 The Legislature is not wholly excluded. Once a final pool

of the most qualified applicants is determined, leaders of the

majority and the minority in each chamber each may strike

two applicants from each of the Democratic, Republican, and

unaffiliated sub-pools. See Cal. Gov’t Code § 8252(e). Eight of

the Commission’s final members then are drawn by lottery from

24

 The Commission has a transparent process, must

explain the basis for its decision, and can enact

maps only with bipartisan support. See Cal. Const.

art. XXI, § 2(b) (Commission must “conduct an

open and transparent process enabling full

public consideration”); Cal. Gov’t Code § 8253(a)

(Commission required to comply with state openmeetings law and provide “immediate and widespread public access” to all records and data);

Cal. Const. art. XXI, § 2(c)(5) (final maps must be

approved by three commissioners of each party

registration and by three unregistered commissioners); id. § 2(h) (Commission must accompany

final maps with “report that explains the basis on

which the commission made its decisions”).10

In each of these respects, the California Commission

resembles the Colorado and Michigan redistricting

commissions that this Court cited approvingly in

Rucho. See 139 S. Ct. at 2507; Colo. Const. art. V,

§§ 44.1-44.3; Mich. Const. art. IV, § 6(1)-(2), (8)-(9),

(13)-(14).11

Moreover, assessments of the Commission’s work

confirm that it has improved California’s maps by

the remaining applicants, and those eight choose the last six. See

id. § 8252(f )-(g).

10 See, e.g., 2020 California Citizens Redistricting Comm’n,

Report on Final Maps (Dec. 26, 2021), https://bit.ly/3z9nYQR.

11 Amicus supported the commissions in Michigan and Colorado. See Edward-Isaac Dovere, Arnold Schwarzenegger’s War

on Gerrymandering Is Just Beginning, The Atlantic (Nov. 9,

2018), https://bit.ly/2OPsTfE; Lauren Gibbons, Let’s terminate

gerrymandering, Arnold Schwarzenegger says in Michigan,

MLive (Oct. 20, 2018), https://bit.ly/3VW5xJb; Ernest Luning,

Schwarzenegger endorses Colorado ballot measures to ‘terminate

gerrymandering,’ Colo. Springs Gazette (Sept. 23, 2018),

https://bit.ly/3z9t3ZA.

25

traditional neutral standards. Its maps after the 2010

Census were more competitive than the prior maps.

See Eric McGhee & Lunna Lopes, Assessing California’s Redistricting Commission: Effects on Partisan

Fairness and Competitiveness, Pub. Pol’y Inst. of

California, at 17 (Mar. 2018), https://bit.ly/3Fc30Vo.

Those maps significantly reduced split cities and

counties compared to maps drawn by special masters

and the Legislature after the 1990 and 2000 Censuses,

respectively. See Miller & Grofman, 3 U.C. Irvine L.

Rev. at 658-59. Those maps were “more congruent

with geographic communities of interest than the

districts they replaced.” Nicholas O. Stephanopoulos,

Communities and the California Commission,

23 Stan. L. & Pol’y Rev. 281, 313-14 (2012). And the

maps resulted in legislative diversity more closely

matching California’s population. See Sara Sadhwani

& Jane Junn, Structuring Good Representation:

Institutional Design and Elections in California, PS:

Pol. Sci. & Pol. 318, 320-21 (Apr. 2018).

In all respects, the Commission meaningfully

improved California’s maps compared to the traditional legislative process to which California would

be returned under the independent state legislature

theory. This Court should continue to allow States

to “actively address[ ]” partisan gerrymanders, Rucho,

139 S. Ct. at 2507, and should not terminate California’s and other States’ “innovation and experimentation,” Arizona State Legislature, 576 U.S. at 817. The

consequences of petitioners’ aggressive theory would

be drastic. State legislatures would be able to draw

districts that protect parties and incumbents so that

the people have no realistic recourse at the ballot.

That legislature would be unchecked by any other

branch, contrary to the fundamental separation-ofpowers principle on which the country was founded

26

and which appears in the test that Governor

Schwarzenegger took to obtain his citizenship in 1983.

As James Madison admonished: “you must first

enable the government to control the governed; and in

the next place oblige it to control itself.” The Federalist No. 51.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

October 26, 2022

DAVID C. FREDERICK

Counsel of Record

DANIEL V. DORRIS

MATTHEW N. DRECUN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)