Reply Brief — Glenn Grothman, United States Congressman, et al., Applicants v. Wisconsin Elections Commission, et al.

No. 21A490

In the Supreme Court of the United States

GLENN GROTHMAN, UNITED STATES CONGRESSMAN, ET AL.,

APPLICANTS,

v.

WISCONSIN ELECTIONS COMMISSION, ET AL.,

RESPONDENTS.

REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR STAY

PENDING PETITION FOR WRIT OF CERTIORARI OR, IN THE ALTERNATIVE,

A PETITION FOR A WRIT OF CERTIORARI AND SUMMARY REVERSAL

On Application For Stay, Or, In The Alternative, On Petition

For A Writ Of Certiorari To The Wisconsin Supreme Court

To the Honorable Amy Coney Barrett

Associate Justice of the Supreme Court of the United States

and Circuit Justice for the Seventh Circuit

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

SEAN T.H. DUTTON

EMILY A. O’BRIEN

MOSES M. TINCHER

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe,

Suite 3900

Chicago, Illinois 60606

(608) 999-1240 (MT)

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

Attorneys for Applicants

TABLE OF CONTENTS

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

I.

This Court Is Likely To Grant Review And To Summarily Reverse On

Both Of The Congressmen’s Questions Presented .......................................... 3

A. The Wisconsin Supreme Court Violated The Due Process Clause ........... 3

B. The Wisconsin Supreme Court Violated Article I, Section 2 .................. 11

II. The Congressmen’s Proposed Remedies Can And Would Be

Implemented Quickly, Without Any Burden On Election Administration .. 16

A. Selecting A Core-Retention-Maximization-Only Congressional Map

On Remand Would Take A Week, At Most ............................................. 16

B. Ordering The Use Of The Legislature’s Adopted Congressional Map

Can Be Done Immediately ....................................................................... 19

III. The Congressmen Have Standing And Would Suffer Grave Irreparable

Harm Absent Immediate Relief From This Court ......................................... 20

CONCLUSION............................................................................................................. 24

TABLE OF AUTHORITIES

Cases

Abrams v. Johnson,

521 U.S. 74 (1997) ............................................................................................. 14

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) ................................................................................. 20, 22

Alexander v. Taylor,

51 P.3d 1204 (Okla. 2002) ................................................................................... 6

Baker v. Carr,

369 U.S. 186 (1962) ........................................................................................... 23

Below v. Gardner,

963 A.2d 785 (N.H. 2002) ................................................................................ 6, 7

Bodker v. Taylor,

No. 1:02-cv-999, 2002 WL 32587312 (N.D. Ga. June 5, 2002) .......................... 6

Bouie v. City of Columbia,

378 U.S. 347 (1964) ................................................................................... passim

Carter v. Chapman,

No. 7 MM 2022, 2022 WL 702894 (Pa. Feb. 23 2022).................................. 6, 14

City of Phila. v. Klutznick,

503 F. Supp. 663 (E.D. Pa. 1980)...................................................................... 21

Corman v. Torres,

287 F. Supp. 3d 558 (M.D. Pa. 2018) ................................................................ 21

Crumly v. Cobb Cnty. Bd. of Elections & Voter Registration,

892 F. Supp. 2d 1333 (N.D. Ga. 2012) ................................................................ 6

Democratic Nat’l Comm. v. Bostelmann,

949 N.W.2d 423 (Wis. 2020) ............................................................................. 18

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020) ....................................................................................... 21

Essex v. Kobach,

874 F. Supp. 2d 1069 (D. Kan. 2012)................................................................ 15

Evenwel v. Abbott,

578 U.S. 54 (2016) ............................................................................................. 11

Gill v. Whitford,

138 S. Ct. 1916 (2018) ....................................................................................... 23

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In Re Petition Of Reapportionment Comm’n Ex. Rel.,

Case No. SC 20661 (Conn. Supreme Court, Jan. 18, 2022)............................... 6

Johnson v. Wis. Elections Comm’n,

399 Wis. 2d 623 (2021) ................................................................................ 4, 5, 6

Karcher v. Daggett,

462 U.S. 725 (1983) ........................................................................... 2, 11, 13, 23

Lassiter v. Dep’t of Soc. Servs.,

452 U.S. 18 (1981) ......................................................................................... 3, 21

Mahan v. Howell,

410 U.S. 315 (1973) ........................................................................................... 11

Markham v. Fulton Cnty. Bd. of Registrations & Elections,

No. 1:02-cv-1111, 2002 WL 32587313 (N.D. Ga. May 29, 2002) ....................... 6

Martin v. Augusta-Richmond Cnty. Comm’n,

No. CV 112–058, 2012 WL 2339499 (S.D. Ga. June 19, 2012) .......................... 6

Merrill v. Milligan,

142 S. Ct. 879 (2022) ......................................................................................... 19

Moore v. Harper,

142 S. Ct. 1089 (2022) (mem.) .......................................................................... 19

Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) ............................................................................................. 3

N.C. League, of Conservation Voters, Inc. v. Hall,

Nos. 21 CVS 015426 and 21 CVS 500085, 2022 WL 124616, at *115 (N.C.

Super. Ct. Jan. 11, 2022) .................................................................................. 19

NAACP v. Patterson,

357 U.S. 449 (1958) ......................................................................................... 5, 9

Reich v. Collins,

513 U.S. 106 (1994) ................................................................................... passim

Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) (per curiam)...................................................................... 20

Rumsfeld v. Forum for Acad. & Institutional Right, Inc.,

547 U.S. 47 (2006) ....................................................................................... 22, 23

Saunders v. Shaw,

244 U.S. 317 (1917) ................................................................................... passim

Stenger v. Kellett,

No. 4:11-cv-2230, 2012 WL 601017 (E.D. Mo. Feb. 23, 2012) ........................... 6

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Swann v. Adams,

385 U.S. 440 (1967) ........................................................................................... 21

Taylor v. Freeland & Kronz,

503 U.S. 638 (1992) ..................................................................................... 12, 13

Tennant v. Jefferson Cnty. Comm’n,

567 U.S. 758 (2012) ........................................................................................... 14

Toth v. Chapman,

No. 21A457, 2022 WL 667924 (U.S. Mar. 7, 2022) .......................................... 15

Turner v. Arkansas,

784 F. Supp. 585 (E.D. Ark. 1991) .................................................................... 14

Wesberry v. Sanders,

376 U.S. 1 (1964) ............................................................................................... 23

Statutes And Rules

Ala. Stat. § 17-13-3 ...................................................................................................... 19

Ala. Stat. § 17-13-5 ...................................................................................................... 19

Rule 10 ......................................................................................................................... 16

Wis. Stat § 8.15 ...................................................................................................... 18, 19

Other Authorities

Antonin Scalia, The Rule of Law As A Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) ............................................................................ 5

Edward H. Cooper, 16B Federal Practice & Procedure (Wright & Miller) § 4025

(3d ed. Apr. 2021 update).................................................................................. 10

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TO THE HONORABLE AMY CONEY BARRETT, ASSOCIATE JUSTICE OF THE SUPREME

COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT:

The Wisconsin Supreme Court’s decision below has forced upon Applicants and

the people of Wisconsin a malapportioned congressional map, adopted through an

unconstitutional bait-and-switch process.

The constitutional violations here are

clear, egregious, and easy for this Court to remedy. Indeed, the only upshot of this

Court granting the primary relief that Applicants seek is that the congressional map

that the Wisconsin Supreme Court would adopt within a week both will comply with

Article I, Section 2 and will far better satisfy the core-retention-maximization-only

criteria that the Wisconsin Supreme Court itself belatedly imposed upon the parties.

The two constitutional errors here are indefensible. First, if the Wisconsin

Supreme Court had given the parties constitutionally required fair notice in its

November 30 opinion of the core-retention-maximization-only methodology that was

to govern its selection of a map on March 3, every party would have submitted entirely

different maps. See Stay Appl.24–25. While Respondents now tell this Court that

they knew that the core-retention-maximization-only methodology was the test, that

is flagrantly, demonstrably false. As these parties concede by silence, not a single one

of them even attempted to submit a core-retention-maximization-only map below,

because no one could have thought that was the test. Indeed, as Amicus National

Republican Redistricting Trust points out, drawing a core-retention-maximization

map for Wisconsin’s eight congressional districts is a trivial exercise—easily

completed within an hour—which would move over 200,000 fewer people than the

Governor’s Map and score nearly 4% higher than that map on core retention. NRRT

Amicus Br.7, 9. But this Court need not speculate about whether a bait-and-switch

occurred below: every Justice joining the Court’s November 30 least-change decision

in full said so in their March 3 writings, explaining how the test that the Court

adopted on November 30 was “previously unknown,” App. 41, that core retention was

never noted as “the sole factor to be considered,” App. 90, or as the “sole determinant

of a least change inquiry,” App. 106, and that the Court imposed a “made [ ] up,” rule,

App. 156. None of the Respondents explain these Justices’ March 3 writings in their

Oppositions. Second, as to the Governor Map’s violation of Article I, Section 2, Stay

Appl.27–33, no Respondent disputes that it would have been easy to draw a oneperson-deviation map that far outperformed the Governor’s Map on core-retentionmaximization, meaning that the Governor’s Map’s deviation is not “necessary to

achieve some legitimate state objective,” Karcher v. Daggett, 462 U.S. 725, 740 (1983).

Finally, no other considerations should prevent this Court from remedying the

Wisconsin Supreme Court’s procedural and substantive violations of the Constitution

here. Wisconsin’s election administration deadlines—the first of which does not occur

until April 15—do not counsel against relief, as there is ample time for this Court to

order, and the Wisconsin Supreme Court to implement, the Congressmen’s requested

remedy. And the Congressmen have standing and have suffered irreparable harm

from the Court’s March 3 Opinion and Order, given the deprivation of the

Congressmen’s procedural due process rights; the loss of unrecoverable funds from

campaigning in the significantly altered districts adopted by the Court below; and the

harm of voting and campaigning in malapportioned districts.

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ARGUMENT

I.

This Court Is Likely To Grant Review And To Summarily Reverse On

Both Of The Congressmen’s Questions Presented

A.

The Wisconsin Supreme Court Violated The Due Process Clause

1. The Fourteenth Amendment requires States to adhere to those “standards

necessary to ensure that judicial proceedings are fundamentally fair,” Lassiter v.

Dep’t of Soc. Servs., 452 U.S. 18, 33 (1981), including the minimum safeguards of

“notice and opportunity for hearing appropriate to the nature of the case,” Mullane v.

Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950); Stay Appl.19–20. A state

supreme court violates these constitutional protections when it gives “retroactive

effect” to an “unforeseeable” decision that deprives litigants of a fair “hearing.” Bouie

v. City of Columbia, 378 U.S. 347, 354–55 (1964); see also Reich v. Collins, 513 U.S.

106, 110–14 (1994); Saunders v. Shaw, 244 U.S. 317, 319–20 (1917); Stay Appl.19–

20. That is, what a state supreme court “may not do” under the Due Process Clause

is “reconfigure” its legal “scheme, unfairly, in midcourse—to ‘bait and switch’” the

parties before it. Reich, 513 U.S. at 111.

As the Congressmen explained in their Application, the Wisconsin Supreme

Court’s March 3 Opinion and Order worked a “bait and switch” of the Court’s

governing legal standard for the adoption of congressional redistricting maps. Stay

Appl.22–27.

In its November 30 opinion, the majority adopted a “least-change

approach” to reapportion the State, citing a number of least-change cases that all

considered multiple least-change factors beyond core retention, such as not splitting

communities of interest. Johnson v. Wis. Elections Comm’n, 399 Wis. 2d 623, 666–67

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(2021); Stay Appl.22–23. Justice Hagedorn—whose vote was essential to forming a

majority—explained in a concurrence that he would also consider a map’s respect for

“communities of interest” and “other traditional redistricting criteria” if competing

maps were “equally compelling” as to least changes.” Johnson, 399 Wis. 2d at 673–

74 (Hagedorn, J., concurring); Stay Appl.22–23. Unsurprisingly, every one of the

parties submitted proposed maps that balanced considerations of core-retention

maximization with other least-change indicia, like respect for communities of interest

and avoiding county and municipal splits. Stay Appl.22–23. Then, having “bait[ed]”

the other parties, the Court “switch[ed]” the standard, Reich, 513 U.S. at 111, in its

March 3 Opinion and Order to the core-retention-maximization-only standard. Stay

Appl.24–25.

The Court did not afford the parties the opportunity to submit

evidence—that is, new maps—under this new standard, without a coherent

explanation. Stay Appl.25–26. The Court’s hide-the-ball approach violates the Due

Process Clause. Stay Appl.25–26; see Reich, 513 U.S. at 111; Bouie, 378 U.S. at 354;

Saunders, 244 U.S. at 319–20.

2. Respondents claim that the Court’s dramatic shift from its holistic leastchange approach to its core-retention-maximization-only test was what the Court

ordered in its November 30 opinion. Gov. Resp.19–20; Hunter Resp.14–15. That is,

with all respect, not a serious argument. If this Court has any doubt, the only three

Justices who joined that decision in full, including the opinion’s author, specifically

and unequivocally explained on March 3 that the November 30 opinion did not

contain any suggestion of a core-maximization-only test. App. 41, 90, 106, 126–29 &

-4-

n.1, 155–59. The fourth Justice who made up the November 30 opinion majority had

explicitly told the parties that he would look to both core retention and community of

interest considerations. Johnson, 399 Wis. 2d at 673–77 (Hagedorn, J., concurring).

The Wisconsin Supreme Court’s abrupt shift from a multifactor least-change

approach to a single-element, core-retention-maximization-only test was an

unexpected, mid-litigation “reconfig[uration]” of the Court’s controlling standard.

Reich, 513 U.S. at 111; accord NAACP v. Patterson, 357 U.S. 449, 456 (1958)

(explaining that state supreme court’s subsequent holding could not be “reconcile[d]”

with its “past unambiguous holdings” on the controlling issue); see Antonin Scalia,

The Rule of Law As A Law of Rules, 56 U. Chi. L. Rev. 1175, 1186–87 (1989)

(discussing the sharp distinction between “totality of the circumstances tests” and the

“law of rules” (emphasis omitted)).

While the Governor claims that the Congressmen “were (and remain) entirely

isolated in th[e] view” that the Wisconsin Supreme Court had adopted a coreretention-maximization approach, Gov. Resp.20, that is flagrantly, demonstrably

false.

The proof is in the filings below, as no party—including the Governor—

submitted anything approaching a core-retention-maximization congressional map

after the November 30 opinion, and each party focused on a balance between coremaximization and other least-changes indicia. After all, a constitutional map focused

only on core-retention would move over 200,000 fewer people than does the

Governor’s Map. NRRT Amicus Br.9. Put another way, it is now beyond doubt (and

undisputed in the papers here) that all parties to the proceedings below, had they

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been adequately advised of the core-retention-maximization-only approach the

Wisconsin Supreme Court eventually adopted, would have submitted very different

maps, with radically better core-retention scores. Id.

The Hunter Respondents’ citations of In Re Petition Of Reapportionment

Comm’n Ex. Rel., No. SC 20661, 27 (Conn. Jan. 18, 2022);1 Below v. Gardner, 963

A.2d 785, 795 (N.H. 2002); and Carter v. Chapman, No. 7 MM 2022, 2022 WL 702894,

at *26 (Pa. Feb. 23 2022) (Wecht, J., concurring), do not support a different conclusion.

Hunter Resp.15–16. The Wisconsin Supreme Court did not cite most of these decision

in its November 30 opinion, one of which issued after even the March 3 Opinion and

Order. See Carter, 2022 WL 702894 (noting that opinions were filed on March 9,

2022). Instead, the November 30 opinion relied upon multiple cases all applying

multi-factor, least-change approaches, Johnson, 399 Wis. 2d at 666–67 (citing Crumly

v. Cobb Cnty. Bd. of Elections & Voter Registration, 892 F. Supp. 2d 1333, 1344–45

(N.D. Ga. 2012); Martin v. Augusta-Richmond Cnty. Comm’n, No. CV 112–058, 2012

WL 2339499, at *3 (S.D. Ga. June 19, 2012); Stenger v. Kellett, No. 4:11-cv-2230, 2012

WL 601017, at *3 (E.D. Mo. Feb. 23, 2012); Below, 963 A.2d at 794; Alexander v.

Taylor, 51 P.3d 1204, 1211 (Okla. 2002); Bodker v. Taylor, No. 1:02-cv-999, 2002 WL

32587312, at *5 (N.D. Ga. June 5, 2002); Markham v. Fulton Cnty. Bd. of

Registrations & Elections, No. 1:02-cv-1111, 2002 WL 32587313, at *6 (N.D. Ga. May

29, 2002)). And while Hunter Respondents claim that Below (the only decision they

1 Available at https://jud.ct.gov/supremecourt/Reapportionment/2021/Docs/FinalOrde

r.pdf (all websites last visited Mar. 16, 2022).

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cite that the Wisconsin Supreme Court also cited) stands for proposition that “[c]ourts

routinely implement the least-change standard by examining core retention,” Hunter

Resp.15, the court there considered core retention alongside other traditional

redistricting criteria as part of its least-change inquiry, Below, 963 A.2d at 794–95,

which is the approach the November 30 opinion announced. And, again, every Justice

who joined the November 30 opinion in full agreed that the March 3 Opinion and

Order blindsided the parties on this core-retention-maximization-only methodology,

“implement[ing] a previously unknown, judicial test,” App. 41, “[n]ever before”

submitted as “the sole factor to be considered,” App. 90, or the “sole determinant of a

least change inquiry,” App. 106, imposing a test that “th[e] [March 3 Opinion and

Order] majority made [ ] up,” App. 156.

Respondents next argue that the Congressmen cannot claim surprise at the

Wisconsin Supreme Court’s sudden adoption of the core-retention-maximization-only

methodology, since, in Respondents’ view, the Congressmen themselves advocated for

this single-element methodology before the Court, and because the Congressmen

tried to submit an alternative map. Gov. Resp.17–18, 21; Hunter Resp.14–15. As a

threshold matter, Respondents are wrong, given that the Congressmen advocated for

the Court to follow a “‘least-change’ approach” that requires it “to adopt a remedial

map by making minor or obvious adjustments to the existing map to account for shifts

in [ ] population,” Supp.App. 108 (citations omitted), while recognizing that the Court

“must exercise some limited discretion . . . when determining precisely how to adjust

existing district lines,” Supp.App. 109. For that limited discretion, the Congressmen

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explained, “traditional redistricting principles would guide” the Court and “counsel

in favor of adjusting the district’s lines” in one “manner” over another.

Supp.App. 110; see also Supp.App. 73–74. Nowhere did the Congressmen argue that

core retention should be the only indicia of least-change, including in deciding which

changes would qualify as minor or obvious, see Supp.App. 84, 95–130. In any event,

it does not matter what the parties advocated before the November 30 opinion, it

matters what the Wisconsin Supreme Court actually ordered as the standard it would

employ, and (1) every Justice who joined the November 30 opinion in full agrees

fervently with the Congressmen as to that opinion’s meaning; and (2) every party

submitted maps to the Court under the understanding that the least-change

approach did not equate to core-retention-maximization-only.

As for the

Congressmen’s attempt to submit an alternative map, that submittal continued to

respect traditional redistricting criteria to some extent—such as communities of

interest and county/municipal splits—while further emphasizing core retention.

App. 322–29; App. 14 n.11. While that map moved about 100,000 people fewer than

did the Governor’s Map, it still moved roughly 100,000 people more than a coreretention-maximization map. NRRT Amicus Br.9.

The Governor takes the remarkable position that the Due Process Clause

permits state courts to mislead parties, switching a multifactor test to a single factor,

and then applying that single-factor test without allow the parties to present evidence

under the single-factor test. This Court’s decisions in Bouie, Reich, and Saunders all

refute that surprising argument.

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In Bouie, this Court explained that a state supreme court cannot, consistent

with the Due Process Clause, give “retroactive effect” to an “unforeseeable” decision,

if the application of that decision would deny “a litigant a [fair] hearing.” 378 U.S. at

354–55. The Governor’s failure to engage with Bouie is a tacit admission that this

Court has long imposed due-process safeguards on state supreme courts to prohibit

what happened here—a lack of “fair warning” before imposing an adverse decision

after a change in the law. Id. at 352.

Similarly, in Reich, this Court held that while the Due Process Clause did not

deny a state supreme court the “flexibility” to choose an “exclusive[ ] . . . remedial

scheme,” the court could not do so “unfairly, in midcourse” by “h[o]ld[ing] out what

plainly appeared to be a ‘clear and certain’ . . . remedy” before revoking that option

and imposing an alternative and exclusive option. 513 U.S. at 110–11. While the

Governor attempts to distinguish Reich by claiming that it “hinged entirely on the

application of longstanding due-process principles governing state-law remedial

schemes for taxpayers,” Gov. Resp.24, he ignores that this Court found that the facts

of Reich bore “a remarkable resemblance to” NAACP v. Alabama ex rel. Patterson,

357 U. S. 449 (1958)—a mandamus case in which this Court held that a state court’s

deprival of fair review of contempt judgments could violate a litigant’s “federal

constitutional rights,” Reich, 513 U.S. at 112–13 (citation omitted).

In Saunders, this Court held that “the 14th Amendment” precluded a state

court from reversing a favorable judgment based on a new judicial decision without

permitting the losing litigant to “put his evidence in” in response to that new decision

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if he did not have “the proper opportunity to present his evidence” before. 244 U.S.

at 319. The Governor acknowledges these aspects of the decision, Gov. Resp.24–25,

but then makes an about-face and seeks to confine Saunders to its facts, arguing that

it “stands for a modest, unremarkable proposition: that ‘state procedural rulings

cannot be found to be independent of a claim that the procedural rulings themselves

cause a denial of due process,’” id. at 25 (citing Edward H. Cooper, 16B Federal

Practice & Procedure (Wright & Miller) § 4025 (3d ed. Apr. 2021 update) (hereinafter

“Wright & Miller”)). While this is one holding of Saunders, this Court also held that

“it was a denial of due process to refuse to entertain the defendant’s petition for

rehearing,” and “the denial of due process rights ‘need not be by legislation.’” Wright

& Miller, supra, § 4025 (quoting Saunders, 244 U.S. at 320).

None of the doctrines that the Governor cites support his parsimonious

understanding of the Due Process Clause. He first points to law-of-the-case precedent

to suggest that judicial substitution of a new test is constitutionally permissible. Gov.

Resp.22. But if a court were ever to take the remarkable step of displacing the law

of the case by adopting a new test and then subsequently refusing to allow the parties

even to submit evidence under this new rule—as occurred here—that would create

the very Due Process Clause problem that Bouie, Reich, and Saunders identify.

Similarly, as to stare decisis, Gov. Resp.23, while courts certainly have the authority

to overrule prior decisions, this power does not include the authority to adopt an

entirely new test—such as switching from a multi-factor test to a one-factor test—

and then give the parties no opportunity to submit evidence under that test,

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especially when, as here, it is undisputed that allowing the parties fairly to submit

evidence under the new standard would change the outcome of the case at issue.

Finally, the Hunter Respondents argue that the Congressmen suffered no

deprivation of due process rights because “no candidate holds a protected property

interest or liberty interest in their election to office, let alone in election to office under

the district lines of their choosing.” Hunter Resp.13. That is just a rehash of their

meritless irreparable-harm argument, addressed below, see infra Part III.

B.

The Wisconsin Supreme Court Violated Article I, Section 2

1. Article I, Section 2 imposes a “one-person, one-vote principle” on the States’

congressional districts, meaning that “congressional districts [must] be drawn with

equal populations.” Evenwel v. Abbott, 578 U.S. 54, 59 (2016). Specifically, States

must “draw congressional districts with populations as close to perfect equality as

possible”—with no exceptions given. Id. But even under the pre-Evenwel rule in

Karcher, “absolute population equality” is “the paramount objective,” tolerating only

those deviations from “[p]recise mathematical equality” that are “impossible” to

eliminate or that are “necessary to achieve some legitimate state objective.” 462 U.S.

at 730–31, 740; accord Mahan v. Howell, 410 U.S. 315, 322 (1973); Stay Appl.27–28.

The Governor’s Map unquestionably violates Article I, Section 2.

Stay

Appl.28–33. As an initial matter, the Governor’s Map violates Evenwel, since it has

a two-person deviation from ideal population, although it is indisputably possible to

draw a map with a one-person deviation. Stay Appl.29; Evenwel, 578 U.S. at 59. In

any event, the Governor’s Map also fails under Karcher: First, and again, it is

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possible to draw a map with a one-person deviation, yet the Governor failed to do so

only because of his own mistake of law. Stay Appl.29–30. Second, the Governor did

not even attempt to carry his burden of justifying his deviation from ideal population

with reference to any legitimate state objective, admitting at oral argument that this

was solely because of his own mistake of law. Stay Appl.30. Further, the Wisconsin

Supreme Court’s own conclusion that it would be administratively convenient to

adopt the Governor’s Map fails to justify its deviation either. Stay Appl.30–33.

2. Respondents’ attempts to salvage the Governor’s Map all flounder.

To begin, the Governor chides the Congressmen for not addressing the oneperson/one-vote violation in the Governor’s Map in their response brief before the

Wisconsin Supreme Court below, apparently claiming that this issue was not

preserved for this Court’s review here. Gov. Resp.1, 12, 30. But this issue was

squarely and repeatedly raised below—including by the Congressmen—and

addressed by the Court, see Taylor v. Freeland & Kronz, 503 U.S. 638, 645–46 (1992).

Respondents Citizen Mathematicians and Scientists raised this issue in their

relevant response brief to the Wisconsin Supreme Court, explaining that the

“Governor’s . . . proposed plan[ ] fail[s] to satisfy even th[e] fundamental requirement”

of apportioning the State as equally as possible “because [it] exhibit[s] more than the

mathematical minimum population deviation between districts.”

Supp. App. 33.

Then, in their relevant reply brief, the Congressmen argued that “the Governor’s . . .

proposed congressional map[ ] fail[s] to achieve perfect population equality because

[it] do[es] not reduce the difference between the most and least populous districts to

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a single person, which violates the one-person/one-vote requirement applicable to

congressional redistricting,” while expressing their expectation that the Governor

would file a motion to fix this malapportionment and bring his map into

constitutional compliance. Supp. App. 12 & n.2 (citations omitted). After it became

clear that the Governor had no intention of curing this constitutional violation

because he did not understand the law, the Wisconsin Supreme Court and the

parties—including the Congressmen—focused extensively on this issue at Oral

Argument. See, e.g., Stay Appl.12, 17, 29–30. Finally, both the majority opinion and

dissenting opinions in the March 3 Opinion and Order fully discussed this

malapportionment issue, App. 16–19; App. 107 (Ziegler, C.J., dissenting); App. 129–

31 (R.G. Bradley, J., dissenting), placing it beyond any possible doubt that this

constitutional question was squarely preserved for review, see Taylor, 503 U.S. at

645–46.

Next, the Governor and the Hunter Respondents claim that the deviation in

the Governor’s Map was justified by the Wisconsin Supreme Court’s own coreretention goal, Gov. Resp.27–30; Hunter Resp.20–25, but this is obviously wrong. The

Governor conceded that he could have achieved a lower population deviation without

even suggesting that this would somehow harm core retention, Stay Appl.30–31; see

Karcher, 462 U.S. at 731, 740 (placing the “burden” of justification on the Governor),

and his indecipherable attempts to explain away this concession now are just handwaiving, see Gov. Resp.11–12, 29–30. In any event, the Wisconsin Supreme Court

cannot rely on core retention as a legitimate justification for the Governor’s

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population deviation.

The Court had before it the modified version of the

Congressmen’s Map, which had a higher core-retention score than the Governor’s

Map and achieved as equal an apportionment as possible. Stay Appl.31 (citing

App. 327). Even if the Court did not wish to adopt that map for procedural reasons,

compare Gov. Resp.29–30, that map unequivocally proves the obvious: nothing about

the Governor’s deviation is even arguably justified by core-retention goals. Indeed,

any argument to the contrary is risible, given that it takes less than an hour to create

a map with a constitutionally compliant, one-person deviation that moves 200,000

fewer people than the Governor’s Map. NRRT Amicus Br.7, 9.

None of the authorities that the Governor and the Hunter Respondents cite

supports the Governor’s Map’s deviation here.

Resp.21–23.

Gov. Resp.28–29 & n.8; Hunter

This Court’s cases require an actual legitimate justification for

population deviations, Tennant v. Jefferson Cnty. Comm’n, 567 U.S. 758, 764 (2012)

(“minimiz[ing] population shifts between districts”); Abrams v. Johnson, 521 U.S. 74,

99 (1997) (“not splitting counties” or “precincts”), as do the overwhelming majority of

the cited lower-court cases, Carter, 2022 WL 702894, at *16 (“limit[ing] the number

of [district] splits”); Turner v. Arkansas, 784 F. Supp. 585, 588–89 (E.D. Ark. 1991)

(“causing the fewest changes in the location of counties and people”); Stone v. Hechler,

782 F. Supp. 1116, 1128 (N.D. W. Va. 1992) (“preserv[ing] prior district cores and

maintain[ing] compactness”); Colleton Cnty. Council v. McConnell, 201 F. Supp. 2d

618, 664 (D.S.C. 2002) (“maintain[ing] the cores of the existing congressional

districts,” while “adding or subtracting” population in a “compact and contiguous”

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manner). The only cited exception appears to be Essex v. Kobach, 874 F. Supp. 2d

1069, 1088 (D. Kan. 2012), a district-court decision with no reasoning on this issue.

Finally, the Hunter Respondents cite this Court’s recent refusal to stay the

Pennsylvania Supreme Court’s court-drawn map in Toth v. Chapman, No. 21A457,

2022 WL 667924 (U.S. Mar. 7, 2022), as support for their claim that the Governor’s

Map’s two-person deviation from ideal population is excusable here, Hunter Resp.20–

21, but Toth is procedurally distinguishable. Prior to requesting a stay in this Court,

the Toth petitioners—a group of Pennsylvania voters—filed a federal lawsuit

requesting a district court to enjoin the congressional map adopted by the

Pennsylvania Supreme Court. See Intervenor-Resp’ts Resp. in Opp’n To Emergency

Appl. For Writ of Inj., Toth v. Chapman, No. 21A457 (U.S. filed Mar. 3, 2022); see also

Compl. at 4, Toth v. Chapman, No.1:22cv208 (M.D. Pa. filed Feb. 11, 2022);

Emergency Mot. for TRO or Prelim. Inj. at 2–3, Toth v. Chapman, No.1:22cv208 (M.D.

Pa. filed Feb. 20, 2022). Following the district court’s denial of the Toth petitioners’

motion for a temporary restraining order—and before that court could even convene

the three-judge panel or rule on petitioners’ motion to file an amended complaint that

raised, for the first time, their malapportionment claim—the petitioners filed an

emergency application for relief in this Court. Emergency Appl. to J. Alito for Writ

of Inj., Toth v. Chapman, No. 21A457(U.S. filed Feb. 28, 2022). This Court denied

that emergency application, stating that the “case has now been referred to a threejudge court, and the parties may exercise their right to appeal from an order of that

court granting or denying interlocutory injunctive relief.” Order in Pending Case,

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Toth v. Chapman, No. 21A457, 2022 WL 667924 (U.S. Mar. 7, 2022).

The

Congressmen’s Application here is in a different procedural posture, as they come to

this Court directly from the Wisconsin Supreme Court’s decision adopting the

Governor’s Map. See Rule 10(b).

II.

The Congressmen’s Proposed Remedies Can And Would Be

Implemented Quickly, Without Any Burden On Election

Administration

A.

Selecting A Core-Retention-Maximization-Only Congressional

Map On Remand Would Take A Week, At Most

As the Congressmen explained, their primary requested remedy here is for this

Court to remand to the Wisconsin Supreme Court with instructions to permit all

parties to submit new proposed maps under the Court’s newly announced, coreretention-maximization-only methodology. Stay Appl.3–4, 35–37, 39. This would

fully address the Court’s due process violation by allowing the parties the opportunity

to submit evidence under the Court’s new governing standard, while also mooting the

issue of the malapportionment of the Governor’s Map. Further, drawing a map under

the Wisconsin Supreme Court’s newly announced, core-retention-maximization-only

methodology is a trivially easy exercise, Stay Appl.2–3, 37, which also eliminates any

plausible claim that any delay from this Court’s stay would cause any harm in light

of upcoming election deadlines, Stay Appl.35–37.

Republican

Redistricting

Trust

notes,

this

Indeed, as Amicus National

core-retention-maximization-only

congressional map can be drafted “in less than one hour.” NRRT Amicus Br.4, 6–7.

None of the other parties raises a serious argument that employing this

remedy would take more than a week. While the Hunter Respondents assert that

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ordering this remedy would somehow “substantially harm other parties and the

public,” Hunter Resp.27, they fail to explain what part of the easy process of adopting

a core-retention-maximization-only map for just eight congressional districts would

cause such harm to anyone. Indeed, their only actual claim of burden appears to be

the hypothetical fear of multiple parties submitting maps with exactly identical coreretention-maximizing figures, presumably somewhere near the Amicus’ 98.15% coreretention figure. Hunter Resp.28; see NRRT Amicus Br.9. As an initial matter, the

Hunter Respondents’ recognition that, upon remand under a core-retentionmaximization-only standard, the parties would submit new maps with radically lower

core-retention scores refutes any argument that the parties had fair notice of such a

requirement after the November 30 opinion. See supra Part I.A. In any event,

concerns of a core-retention “tie,” Hunter Resp.28, are unwarranted, as it is

exceedingly unlikely that two maps would exactly tie for best core-retentionmaximization score, given the very minor adjustments that any map-drawer will need

to make at the end of the draw to achieve a one-person deviation in population. But

even if such an unlikely, exact tie were to happen, the Wisconsin Supreme Court

would resolve any such issue very quickly. To give just one example, the Court proved

its ability to resolve election-related disputes with utmost expediency less than two

years ago, answering a complicated certified question for the Seventh Circuit in an

election-related dispute in four days’ time. See Order Granting Certification and

Accepting Appeal, Dkt. Entry 10-02-2020, Democratic Nat’l Comm. v. Bostelmann,

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2020AP1634 (Wis.); Democratic Nat’l Comm., 949 N.W.2d 423 (Wis. 2020) (issuing

opinion on certified question on October 6, 2020).

Respondent Wisconsin Elections Commission, for its part, claims that this

Court granting a stay now—even if only for the week that it would take to hold a fair,

core-retention-maximization-only proceeding—would create a “grave risk” of harm to

its implementation of Wisconsin’s upcoming elections. WEC Resp.5. This contradicts

the timeline that the Commission provided to this Court in its response to the

companion stay application in this case. There, the Commission requested a ruling

from this Court by “March 15, 2022,” so that it could “implement new maps for the

next election.” Resp. of Resp’ts WEC To Emergency Appl. For Stay at 1, 5, Wis.

Legislature v. Wis. Elections Comm’n, No. 21A471 (U.S. Mar. 11, 2022). It then

explained that a delay “beyond March 15” would only “increase the risk of errors,” id.

at 4—as opposed to the “grave risk” of harm that seemingly any delay would somehow

cause here, WEC Resp.5. The Commission does not even attempt to justify these

inconsistent positions.

Compare WEC Resp.3–5, with Resp. of Resp’ts WEC To

Emergency Appl. For Stay at 3–4, Wis. Legislature, No. 21A471.

In any event, even the March 15, claimed “increase[d] . . . risk” date is based

upon mere administrative convenience, not election-administration necessity. Resp.

of Resp’ts WEC to Emergency Appl. for Stay at 3–4, Wis. Legislature, No. 21A471.

While the first upcoming election-related deadline is April 15, this marks just the

beginning of the nomination period for candidates to circulate nomination papers to

appear on the primary ballots. Wis. Stat § 8.15; compare Gov. Resp.3, 31, 33–35, 39;

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WEC Resp.2, 4–5; Hunter Resp.27. After that start date, candidates have until

June 1 to submit their nomination papers to appear on the primary ballots. Wis. Stat

§ 8.15. Thus, the 30-days-away April 15 deadline is far less meaningful than the

deadlines that this Court considered in Moore v. Harper, 142 S. Ct. 1089 (2022)

(mem.), and Merrill v. Milligan, 142 S. Ct. 879 (2022), where the candidate-qualifying

windows had already concluded, see N.C. League, of Conservation Voters, Inc. v. Hall,

Nos. 21 CVS 015426 and 21 CVS 500085, 2022 WL 124616, at *115 (N.C. Super. Ct.

Jan. 11, 2022) (closing candidate-qualifying window on March 4); Ala. Stat. §§ 17-133, 17-13-5 (setting primary election on May 24, and closing candidate-qualifying

window on January 28).

B.

Ordering The Use Of The Legislature’s Adopted Congressional

Map Can Be Done Immediately

The Congressmen’s alternative remedy—ordering Wisconsin’s upcoming 2022

congressional election to proceed under the congressional map passed by the

Wisconsin Legislature in 2021, but vetoed by the Governor, which is the same map

that the Congressmen proposed to the Wisconsin Supreme Court below, Stay Appl.3–

4, 38–39—may be done immediately. The map passed by the Wisconsin Legislature

in 2021 moves fewer people under the Wisconsin Supreme Court’s core-retentionmaximization-only methodology than any of the constitutional maps that the Court

agreed to consider. Stay Appl.38. In contrast, the Hunter Respondents’ proposed

remedy—ordering the Wisconsin Supreme Court to make whatever slight corrections

to the Governor’s Map are necessary to apportion it as equally as possible, consistent

with the Constitution’s one-person/one-vote principle, Hunter Resp.25—is not

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available under the Wisconsin Supreme Court’s own newly announced standard for

judging proposed remedial maps for Wisconsin, which involved adopting a map

without modification. See Stay Appl.13–14 (discussing App. 8–9, 12, 14). Thus, with

the Governor’s Map disqualified for failure to comply with the Constitution’s oneperson/one-vote principle, the map passed by the Legislature in 2021 is the next-best

option under the Wisconsin Supreme Court’s own methodology.

Of course, the

Congressmen’s primary request is that all parties be given the right to submit coreretention-maximization maps, see supra Part II.A, but the Congressmen’s

alternatively remedy is certainly the second-best option.

III.

The Congressmen Have Standing And Would Suffer Grave Irreparable

Harm Absent Immediate Relief From This Court

As the Congressmen explained in their Application, Stay Appl.33–37, they will

suffer irreparable harm absent emergency relief from this Court, and they have

Article III standing for the same reasons.

A. Harm From Rejection Of Congressmen’s Proposed Maps. The Congressmen

have standing, and would suffer irreparable harm, because the Wisconsin Supreme

Court deprived the Congressmen of their Due Process Clause rights to a procedurally

fair judicial process, including fair notice that would have allowed them to submit a

proposed congressional map under the controlling legal standard that the Court

announced. Stay Appl.33; see Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct.

63, 67–68 (2020) (per curiam); accord Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485,

2489 (2021). Relatedly, as this Court’s decision in Swann v. Adams, 385 U.S. 440

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(1967), held, the Congressmen have standing given the Wisconsin Supreme Court’s

“reject[ion]” of the Congressmen’s “alternative plan.” Id. at 443.

The Hunter Respondents argue that the Congressmen have no standing to

assert this Due Process Clause claim because, in their view, candidates have “no

legally cognizable interest in the composition of the district” that they wish to

represent. Hunter Resp.14 (quoting Corman v. Torres, 287 F. Supp. 3d 558, 569 (M.D.

Pa. 2018), and citing City of Phila. v. Klutznick, 503 F. Supp. 663, 672 (E.D. Pa.

1980)). Yet, as to their due process claim, the Congressmen are asserting their Due

Process Clause-protected interest in a “judicial proceeding[ ]” that is “fundamentally

fair,” Lassiter, 452 U.S. at 33, including one that is free from an unconstitutional “bait

and switch,” Reich, 513 U.S. at 111. Once the Wisconsin Supreme Court granted the

Congressmen party status and recognized their “interest relating to the subject of

this redistricting action,” Supp. App. 92, they obtained the same procedural due

process rights under the Due Process Clause that every litigant before a state court

enjoys—and the infringement of those rights inflicts a cognizable injury on the

Congressmen, under Article III, see Reich, 513 U.S. at 110–11 (explaining that a

“reconfig[uration]” of a state “scheme” mid-litigation violates a party’s constitutional

due process rights, although the State is otherwise free to “reconfigure its [ ] scheme

over time”); accord Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2261

(2020) (holding that “[a] State need not subsidize private education,” but “once a State

decides to do so,” it must comply with the Establishment Clause).

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B. Harm From Expenditure Of Unrecoverable Funds. The Wisconsin Supreme

Court’s selection of the Governor’s Map forces Congressman Bryan Steil, in

particular, to expend additional and unrecoverable resources campaigning for the

2022 election in a significantly altered district—a harm that establishes his standing.

Stay Appl.34; Ala. Ass’n of Realtors, 141 S. Ct. at 2489; Rumsfeld v. Forum for Acad.

& Institutional Right, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party

with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”).

The Governor and the Hunter Respondents do not overcome this

straightforward showing. They cannot, and do not, dispute that the unrecoverable

expenditure of funds is irreparable. See generally Gov. Resp.37–38; Hunter Resp.25–

28. Instead, the Hunter Respondents quibble with the magnitude of the change in

lines in the Governor’s Map.

See Hunter Resp.26.

Yet, as the Congressmen

explained, the Governor’s Map significantly alters District 1, in particular, by adding

“significant new communities” into Congressman Steil’s district, with whom he has

no existing ties. App. 393–95; Stay Appl.34. Contrary to the Hunter Respondents’

apparent claims, a core-retention-maximization-only map would not make these

significant changes, and, thus, the adoption of the Governor’s Map forces at least

Congressman Steil to incur substantial and unrecoverable campaign costs that he

would have avoided under a different map, sufficient to give him standing, Ala. Ass’n

of Realtors, 141 S. Ct. at 2489; Rumsfeld, 547 U.S. at 52 n.2.

C. Harm From Voting And Running In A Malapportioned District.

The

adoption of the Governor’s malapportioned map forces several of the Congressmen to

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vote and campaign in overpopulated congressional districts, which doubly injures

them as voters and candidates, Stay Appl.34–35, and is an irreparable harm,

Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964); Stay Appl.34–35.

The Hunter Respondents claim that none of the Applicants suffer any harm

from the Governor’s Map’s malapportionment because none of the Applicants live in

overpopulated districts, but this is incorrect.

Hunter Resp.18–20. Under the

Governor’s Map, Districts 1, 3, 5, and 7 are overpopulated, as they all contain 736,715

or 736,716 people, Supp. App. 2, while the constitutionally ideal population is

736,714.75 people, App. 17. Several of the Applicant Congressmen live in, represent,

and intend to run for reelection in the unconstitutionally overpopulated districts,

including Congressman Steil in District 1. See App. 393. These Congressmen have

standing to challenge “the particular composition of [their] own district” in this Court,

Gill v. Whitford, 138 S. Ct. 1916, 1921 (2018), given their constitutionally sufficient

interests “in maintaining the effectiveness of their votes,” Baker v. Carr, 369 U.S.

186, 208 (1962); see Rumsfeld, 547 U.S. at 52 n.2 (only one party needs standing).2

2 If a map placed 736,714 or 736,715 people in each district, as the Congressmen’s Map

and the modified version of the Congressmen’s Map did, Stay Appl. 10–11, those living in

districts with 736,715 people would still be living in overpopulated districts. But those

districts would be constitutional, since they are as equally apportioned “as nearly as is

practicable,” Wesberry, 376 U.S. at 7–8; see also Karcher, 462 U.S. at 730–31.

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CONCLUSION

This Court should stay the March 3 Opinion and Order of the Wisconsin

Supreme Court—or, alternatively, construe this Application as a petition for

certiorari and summarily reverse—and then either: (1) remand to the Wisconsin

Supreme Court with instructions to permit all parties to submit new proposed maps

under

the

Wisconsin

Supreme

Court’s

newly

announced,

core-retention-

maximization-only methodology; or (2) order that Wisconsin hold its upcoming 2022

congressional elections under the map passed by the Legislature in 2021, on a

remedial basis.

Respectfully submitted,

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

SEAN T.H. DUTTON

EMILY A. O’BRIEN

MOSES M. TINCHER

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe,

Suite 3900

Chicago, Illinois 60606

(608) 999-1240 (MT)

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

March 16, 2022

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