Amicus Curiae Brief — Greg Abbott, in His Official Capacity as Governor of Texas, et al., Appellants v. League of United Latin American Citizens, et al.

No. 25-845

IN THE

Supreme Court of the United States

GREG ABBOTT,

IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE

STATE OF TEXAS, ET AL.,

v.

APPELLANTS,

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

ET AL.,

APPELLEES.

On Appeal from the United States District Court

for the Western District of Texas

BRIEF OF AMICUS CURIAE

STEPHEN M. SHAPIRO

IN SUPPORT OF APPELLEES

STEPHEN M. SHAPIRO

Counsel of Record

5111 Westridge Road

Bethesda, MD 20816

(301) 229-6241

SteveS@md.net

March 19, 2026

TABLE OF CONTENTS

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

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

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

ARGUMENT .......................................................... 6

I.

THIS COURT HELD IN COOK V. GRALIKE THAT ....

A STATE LEGISLATURE EXCEEDS ITS AUTHORITY

TO REGULATE CONGRESSIONAL ELECTIONS .......

WHEN IT DOES SO IN A MANNER TO FAVOR ........

OR DISFAVOR CLASSES OF CANDIDATES ........... 6

II. THE COURT THEN HELD IN RUCHO V. COMMON

CAUSE THAT THE FEDERAL COURTS LACK .........

JURISDICTION TO HEAR CLAIMS AS TO ................

PARTISAN GERRYMANDERING, CREATING, ..........

SUB SILENTIO, AN EXCEPTION TO OR ..................

A CONFLICT WITH COOK AS TO THESE ................

ELECTIONS CLAUSE REGULATIONS ................ 10

III. THE RULE IN COOK MAY AFFORD A BASIS .........

TO REVIEW PARTISAN GERRYMANDERING ....... 12

.....................................................................

A. IT WOULD STRIKE THIS ENTIRE DISTRICT .....

MAP IF IT WAS ENACTED TO SECURE .............

FIVE ADDITIONAL REPUBLICAN SEATS ..........

IN THE U.S. HOUSE OF REPRESENTATIVES..13

B. IT COULD ALSO SERVE AS A MANAGEABLE ....

BASIS TO REVIEW A DISTRICT MAP ................

ENACTED AFTER A DECENNIAL CENSUS .... 14

CONCLUSION............................ ......................... 19

ii

TABLE OF AUTHORITIES

Cases

Alexander v. S.C. State Conf. of the NAACP,

602 U.S. 1 (2024) ............................................. 9

Allen v. Milligan,

599 U.S. 1 (2023) ........................................... 17

Anderson v. Martin, .................................................

375 U.S. 399 (1964) ......................................... 7

In re Apportionment L., ...........................................

414 So.2d 1040 (Fla. 1982) ............................ 16

Ariz. State Legislature v. Ariz. Indep. ...................

Redistricting Comm'n,

576 U.S. 787 (2015) ......................................... 8

Bell v. Wolfish, .........................................................

441 U.S. 520 (1979) ....................................... 18

Cook v. Gralike, .......................................................

531 U.S. 510 (2001) .................. 2-7, 9-15, 17-20

El-Shifa Pharm. Indus. Co. v. United States, .........

607 F.3d 836 (D.C. Cir. 2010) ....................... 18

Forsyth County v. Nationalist Movement, .............

505 U.S. 123 (1992) ....................................... 13

Griffin v. City of Robards, ........................................

990 S.W.2d 634 (Ky. 1999) ............................ 16

Hague v. Comm. for Indus. Org.,

307 U.S. 496 (1939) ......................................... 9

Highland Farms Dairy v. Agnew, ...........................

300 U.S. 608 (1937) ....................................... 18

iii

Hunt v. Cromartie, ...................................................

526 U. S. 541 (1999) ...................................... 10

League of United Latin Am. Citizens v. Perry, ......

548 U.S. 399 (2006) ............................. 5, 11, 15

In re Legis. Districting of the State, .......................

A.2d 292 (Md. 2002) ...................................... 16

Rucho v. Common Cause, ........................................

139 S. Ct. 2484 (2019) ...... 3-4, 10-12, 16, 18-19

Smiley v. Holm, ........................................................

285 U.S. 355 (1932) .............................. 7, 18-19

Twining v. New Jersey,............................................

211 U.S. 78 (1908), ............................................

overruled on other grounds by ..........................

Malloy v. Hogan,................................................

378 U.S. 1 (1964) ............................................. 9

United States v. Classic, ..........................................

313 U. S. 299 (1941) ..................................... 8-9

U.S. Term Limits v. Thornton, ................................

514 U.S. 779 (1995) ................................ 2, 6-10

Vieth v. Jubelirer, ....................................................

541 U.S. 267 (2004) ........................ 3, 10, 16-17

Wesberry v. Sanders, ...............................................

376 U.S. 1 (1964) ................................... 5, 8, 15

Wiley v. Sinkler, .......................................................

179 U.S. 58 (1900) ........................................... 9

Ex parte Yarbrough, ................................................

110 U.S. 651 (1884) ......................................... 9

iv

Constitutional Provisions

U.S. Const. art. I, § 2 .................................... 6, 8-10

U.S. Const. art. I, § 3 ............................................. 8

U.S. Const. art. I, § 4, cl. 1 .......................................

(Elections Clause) ...... 2-4, 7, 9-10, 12-14, 18-20

U.S. Const. amend. XIV, § 1, cl. 2 ...........................

(Privileges or Immunities Clause) ............... 8-9

Fla. Const., Art. III, § 20(a) ............................. 3, 12

1

INTEREST OF THE AMICUS1

Amicus Stephen M. Shapiro lives in Maryland.

His interest is in vindicating rights that preserve

effective representation for himself and other voters.

In 2013, he led a bipartisan group of voters who filed

the original pro se complaint in what became

Lamone v. Benisek, which was ultimately decided by

this Court with Rucho v. Common Cause in 2019.

He was the lead petitioner when Benisek was first

before this Court as Shapiro v. McManus in 2015.

During 2023, Amicus expended significant effort

engaging leaders of the North Carolina General

Assembly in an attempt to convince them to limit the

partisan aspects of their congressional district map

so as to prevent reciprocal revisions to Maryland’s

map and those of other states. Those efforts failed,

and North Carolina subsequently enacted new

congressional districts in 2023, and a more recent

mid-decade revision to their 2023 map. In January

2026, the Maryland House of Delegates passed a bill

to implement a mid-decade revision of Maryland’s

congressional districts to counter the likely partisan

effects of the Texas map at issue in this case, and to

those of the mid-decade maps enacted in North

Carolina and in other states. That bill remains

stalled for now in the Maryland Senate.

Amicus afforded all counsel of record timely notice of his

intent to file this brief. No person other than the Amicus has

authored this brief in whole or in part or made a monetary

contribution toward its preparation or submission.

1

2

SUMMARY OF ARGUMENT

Appellants contend that the Texas Legislature

“redistricted the State’s congressional districts middecade to secure five additional Republican seats in

the U.S. House of Representatives.” J.S. 1. Even if

Appellants can show that the legislature’s motive

was partisan rather than racial, a partisan motive

in the context of a mid-decade redistricting should

be held to be just as impermissible a racial motive.

While the Court has held that that partisan

gerrymandering claims are nonjusticiable, this has

created a significant sub silentio exception to, if not

a conflict with, the Court’s earlier holdings on the

Elections Clause. This warrants further review,

particularly with respect to a mid-decade

redistricting, where application of the rule set out in

the Court’s Elections Clause cases would be

straightforward. Review is also warranted in light

of the unseemly ongoing battle among state

legislatures for control of the U.S. House of

Representatives—a scenario with no basis in the

Constitution.

This Court held in Cook v. Gralike, 531 U.S. 510

(2001), that “the Framers understood the Elections

Clause as a grant of authority to issue procedural

regulations, and not as a source of power to dictate

electoral outcomes, to favor or disfavor a class of

candidates, or to evade important constitutional

restraints.” Id. at 523-24 (quoting U.S. Term Limits

v. Thornton, 514 U.S. 779, 833-34 (1995)). Thus,

Cook set out a rule that a legislature exceeds its

authority under the Elections Clause when it enacts

3

such regulations that “favor or disfavor a class of

candidates” so as to “dictate electoral outcomes.”

531 U.S. at 523-24.

While the regulation at issue in that case

involved the design of ballots, id. at 514-15, the

Court’s reasoning applies generally to all

regulations issued pursuant to the Elections Clause.

Of all the regulations a state legislature may issue

under the Clause, congressional district maps are

perhaps those most prone to being used as a source

of power to favor the legislature’s preferred

candidates.

This Court more recently held in Rucho v.

Common Cause, 588 U.S. 684 (2019), “that partisan

gerrymandering claims present political questions

beyond the reach of the federal courts.” Id. at 718.

Rucho rejected the premise that the Elections

Clause affords a judicially enforceable limit on the

authority of a state legislature to favor its preferred

candidates in the context of drawing congressional

district maps. Id. at 717 (quoting Vieth v. Jubelirer,

541 U.S. 267, 305 (2004)).

But the Court in Rucho did not review the rule

it had earlier set out for Elections Clause regulations

in Cook,2 nor explain that Rucho set out a significant

Rucho did not discuss the rule in Cook, the

Court noted with approval the nearly identical language in

Florida’s Fair Districts Amendment, 588 U.S. at 719,

suggesting that the Amendment affords Florida courts

practical guidance on gerrymandering, id. Cook could afford

federal courts the same.

2 While the Court in

4

exception to—or a conflict with—that rule as to the

drawing of congressional districts. Rather, the

Court in Rucho said that such favoritism in the

context of districting is “constitutional,” at least to

some extent. See id. at 700-01 (citing key racial

gerrymandering cases). Further, the Court held

that the federal courts lack jurisdiction to review

partisan favoritism in districting in light of the lack

of standards to determine the point as which such

favoritism become unconstitutional. Id. at 703-10,

718.

Under the rule set out in Cook, the entire

undertaking—if it was done “to secure five

additional Republican seats in the U.S. House of

Representatives”—clearly exceeded the legislature’s

Elections Clause authority. The Clause affords a

legislature no power to undertake a mid-decade

redistricting in order to flip five seats or just one, or

to merely increase the partisan margin of even one

seat. Thus, this Court should affirm the judgment

below if the Texas legislature’s purpose was either

racial or partisan.

While the rule from Cook would be a discernible

basis for limiting such favoritism in redistricting

generally, it is particularly straightforward to apply

this rule in the context of a mid-decade redistricting.

The analysis can and should be consistent with the

Court’s review of the impermissible ballot in Cook.

The Court might not need to make findings as to

individual districts to find that the undertaking as a

whole was impermissible. That is, if it was pursued

toward gaining House seats for the legislature’s

preferred party by favoring candidates preferred by

5

the legislature. This closely follows the Court’s

analysis in Cook. 531 U.S. at 524-26.

In the case of a congressional district map

enacted pursuant to a decennial census,3 the rule

under Cook would be the same, but the analysis and

requisite evidence may differ since the mandatory

purpose of any redistricting after a decennial census

is to rebalance the population among the districts.

See Wesberry v. Sanders, 376 U.S. 1, 18 (1964).

After a census, a court is more likely to have to

look to the design of individual districts to determine

whether the legislature fashioned them to favor or

disfavor classes of candidates so as to dictate

electoral outcomes. The test becomes whether the

district lines reflect this intent—typically by

cracking and packing disfavored voters through

disregarding traditional districting criteria.4

3 This discussion on analyzing a map enacted after a census

might not be essential to the Court’s resolution of this case, but

is offered in the event the Court finds it prudent to examine

how the rule set out in Cook v. Gralike might also be applied to

a map enacted after a decennial census. See League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 418-19 (2006)

(opinion of Kennedy, J.) (declining to distinguish the standard

needed to make a partisan gerrymandering claim regarding a

mid-decade redistricting from one after a decennial census).

The proposed rule from Cook is the same, but the analysis and

evidence would differ.

4 A key task for a trial court will be to identify such cracking

and packing rather than just adherence to or disregard of

specific criteria. If chosen carefully, review of such criteria will

be helpful, but they are not all inclusive or determinative.

6

ARGUMENT

I.

This Court held in Cook v. Gralike that

a state legislature exceeds its authority

to regulate congressional elections

when it thereby favors its preferred

candidates

The House of Representatives shall be composed

of Members chosen every second Year by the People

of the several States * * * .

U.S. Const. art. I, § 2 (emphasis added).

The Times, Places and Manner of holding

Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof;

but the Congress may at any time by Law make or

alter such Regulations * * * .

U.S. Const. art. I, § 4 (emphasis added).

Thus the People choose their Representatives,

while their state legislature—or Congress—sets the

details for that process. A state legislature exceeds

this regulatory authority when its regulations

“dictate electoral outcomes” or “favor or disfavor a

class of candidates.” Cook v. Gralike, 531 U.S. 510,

523-24 (2001) (quoting U.S. Term Limits v.

Thornton, 514 U.S. 779, 833-34).

Under this rule set out in Cook, a legislature

exceeds its Section 4 authority to regulate when it

arrogates to itself a Section 2 role that is reserved

for voters as to the selection of Representatives.

7

Rather, Article I, § 4 mandates a duty to enact

“procedure and safeguards * * * necessary * * * to

enforce the fundamental right involved.” Cook, 531

U.S. at 524 (quoting Smiley v. Holm, 285 U.S. 355,

366 (1932)). This “fundamental right” is, of course,

the voters’ right to choose their senators and

representatives.

The Court in Cook struck down a ballot designed

to disfavor candidates who did not support or pledge

to support term limits, 531 U.S. at 514-15, 524,

finding that the ballot’s design “attempt[ed] to

‘dictate electoral outcomes,’” id. at 526 (quoting U.S.

Term Limits, 514 U.S. at 833-34), and concluding

that “[s]uch ‘regulation’ of congressional elections

simply is not authorized by the Elections Clause,”

531 U.S. at 526.

With respect to the importance of ballot design

at issue in Cook, the Court noted that “the adverse

labels [required next to the names of disfavored

candidates] handicap [those] candidates ‘at the most

crucial stage in the election process—the instant

before the vote is cast.’” Cook, 531 U.S. at 525

(quoting Anderson v. Martin, 375 U.S. 399, 402

(1964)); see also 531 U.S. at 532 (Rehnquist, C.J,

concurring in the judgment) (making the identical

point in his First Amendment analysis). Designing

the district map impacts an even more crucial stage

of the election process than the ballot.

“Nothing in the Constitution or The Federalist

Papers, however, supports the idea of state

interference with the most basic relation between

the National Government and its citizens, the

8

selection of legislative representatives.” U.S. Term

Limits, 514 U.S. at 842 (Kennedy, J., concurring).

See also id. (quoting, inter alia, United States v.

Classic, 313 U.S. 299, 315 (1941)) ("The right of

qualified voters within a state to cast their ballots

and have them counted at Congressional elections .

. . is a right secured by the Constitution" and "is

secured against the action of individuals as well as

of states."). Similarly, if the Framers intended for

state legislatures or Congress to have a role in

selecting Representatives, they would have stated

such authority explicitly.

The Great Compromise incorporated in the

Constitution gave the People authority to choose

their Representatives, and gave state legislatures

authority to choose U.S. Senators. See Ariz. State

Legislature v. Ariz. Indep. Redistricting Comm'n,

576 U.S. 787, 831 (2015) (Roberts, C.J., dissenting)

(distinguishing the respective roles of the People and

of state legislatures in selecting members of the

House and Senate prior to the Seventeenth

Amendment, and noting that the “distinction was

critical to the Framers”); Wesberry v. Sanders, 376

U.S. 1, 12–13 (1964) (recounting the Framers’

negotiation of the Great Compromise that they

embodied in Article I, §§ 2 & 3). The Framers could

not have intended that state legislatures would have

a substantive role in choosing House members.

This division of authority among a state’s

legislature and its voters is reinforced by the

Privileges or Immunities Clause:

9

No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States.

U.S. Const. amend. XIV, § 1, cl. 2.

The Privileges or Immunities Clause explicitly

reinforces the holdings in Cook and U.S. Term

Limits—protecting voters’ Article I, § 2 electoral

rights from any abridgment done through a state’s

use of its limited Article I, § 4 authority, or through

any reserved powers a state could apply in

regulating congressional elections. See U.S. Term

Limits, 514 U.S. at 843-44 (Kennedy, J., concurring);

Twining v. New Jersey, 211 U.S. 78, 97 (1908) (citing

Ex parte Yarbrough, 110 U.S. 651, 663 (1884));

Wiley v. Sinkler, 179 U.S. 58, 62–63 (1900)),

overruled on other grounds by Malloy v. Hogan, 378

U.S. 1 (1964); cf. Hague v. Comm. for Indus. Org.,

307 U.S. 496, 512 (1939) (holding that the rights of

political assembly and speech are “a privilege

inherent in citizenship of the United States which

the Amendment protects”); see also U.S. Term

Limits, 514 U.S. at 842 (Kennedy, J., concurring).

(quoting, inter alia, United States v. Classic, 313

U.S. 299, 315 (1941)) (holding that the right to vote

in Congressional elections is secured by the

Constitution against the action of individuals as well

as of the states). But see Alexander v. S.C. State

Conf. of the NAACP, 602 U.S. 1, 53-54 n.3 (Thomas,

J., concurring) (questioning whether political rights,

such as the right to vote for Representatives, are

privileges or immunities protected by the

Fourteenth Amendment).

10

II.

Rucho v. Common Cause Created a Sub

Silentio Exception to Cook and Perhaps

a Conflict That Merits Further Review

This Court held in Rucho v. Common Cause, 588

U.S. 684 (2019), “that partisan gerrymandering

claims present political questions beyond the reach

of the federal courts.” Id. at 718. The Court noted

with disapproval the holdings of the court below that

“the Elections Clause did not empower State

legislatures to disfavor the interests of supporters of

a particular candidate or party in drawing

congressional districts,” id. at 717, and that

“partisan gerrymandering infringes the right of ‘the

People’ to select their representatives,” id. But the

Court did not address its prior decisions in Cook v.

Gralike or U.S. Term Limits v. Thornton, which used

language similar to that used by the court below.

The Court noted with approval that “the plurality in

Vieth concluded—without objection from any other

Justice—that neither §2 nor §4 of Article I ‘provides

a judicially enforceable limit on the political

considerations that the States and Congress may

take into account when districting.’” 588 U.S. at 717

(quoting Vieth v. Jubelirer, 541 U.S. 267, 305

(2004)).

The Court said that “a jurisdiction may engage

in constitutional political gerrymandering.” 588 U.S.

at 700-01 (quoting Hunt v. Cromartie, 526 U. S. 541,

551 (1999)). “To hold that legislators cannot take

partisan interests into account when drawing

district lines would essentially countermand the

Framers' decision to entrust districting to political

entities.” 588 U.S. at 701. But there is a difference

11

between taking partisan interests into account and

gerrymandering, i.e., to favor or disfavor a class of

candidates so as to attempt to dictate electoral

outcomes. It is safe to presume that most if not all

congressional district maps take politics into

account, but hopefully not all are yet

gerrymandered.

Perhaps the difference between “taking politics

into account” and “gerrymandering” is, to an extent

a matter of degree. See Rucho, 588 U.S. at 704. But

the degree is not an assessment of “partisan

dominance,” id. (quoting League of United Latin Am.

Citizens v. Perry, 548 U. S. 399, 420 (opinion of

Kennedy, J.)). Rather, it is a matter of whether the

legislature drew the lines so as to favor its preferred

candidates and thereby attempt to dictate the

outcome. Gerrymandering is more an act with an

intent rather than the degree of resulting

dominance. In other words, gerrymandering is what

a legislature does in drawing a map to favor its

preferred candidates so as to dictate or influence the

outcome. Such an attempt to achieve “partisan

dominance” suggests gerrymandering, whereas

merely “taking politics into account” does not.

Amicus discusses this further in Part III.

The statement in Rucho that gerrymandering is

constitutional conflicts with the rule set out in Cook.

And the holding in Rucho that gerrymandering

claims are nonjusticiable carves out a major

exception to the scope of regulations subject to Cook.

The divergence from Cook warrants further review

by this Court, and the application of Cook may lead

to a path to resolve this case and perhaps others.

12

III.

The Rule in Cook v. Gralike

Affords a Basis to Review

Partisan Gerrymandering

This Court discerned the rule in Cook v. Gralike

from its review of the Elections Clause. Nothing in

the Court’s reasoning in that case would suggest

that it should not apply to the design of

congressional districts, but rather that it should

apply generally to all Elections Clause regulations.

The Court has also suggested that lower courts

could manageably apply the nearly identical

wording of the Florida Fair Districts Amendment,

“No apportionment plan or individual district shall

be drawn with the intent to favor or disfavor a

political party or an incumbent.” See Rucho, 588

U.S. at 719, 720 (quoting Fla. Const., Art. III,

§º20(a)).

The more general rule set out in Cook would be

no less manageable. To be sure, it will not always be

as simple to apply this rule to a district map as to a

ballot, but it is almost that simple in the case of a

mid-decade redistricting.

13

A. This

Entire

Mid-Decade

Redistricting Violates the Rule in

Cook v. Gralike if it Was Done, as

Texas Admits, “to secure five

additional Republican seats in the

U.S. House of Representatives”

Appellants contend that the Texas Legislature

“redistricted the State’s congressional districts middecade to secure five additional Republican seats in

the U.S. House of Representatives.” J.S. 1.

It is hard to imagine another scenario, even that

in Cook, that so blatantly exceeds a legislature’s

authority under the Elections Clause. If this

redistricting was undertaken as admitted, or as may

be later found at trial, it was explicitly done so as to

favor the legislature’s preferred candidates and

thereby dictate the outcome of the upcoming 2026

elections in Texas. To wit, “to secure five additional

Republican seats.”

This conclusion requires no analysis of any

specific district within the challenged map. But

rather, the entire enterprise was impermissible

under the rule in Cook. The specific number of seats

attempted to be secured is not relevant; a middecade redistricting done to secure just one

additional seat for the legislature’s preferred party

is just as impermissible as one undertaken to secure

five. Cf. Forsyth Cnty. v. Nationalist Movement, 505

U.S. 123, 136 (1992) (“[T]he level of the fee is

irrelevant. A[n unconstitutional] tax * * * does not

become more constitutional because it is a small

tax.”).

14

Analysis of a mid-decade redistricting that is

explicitly undertaken for partisan gain is analogous

to this Court’s analysis of the ballot stricken in Cook.

The Court in Cook did not—and did not have to—

quantify the degree to which the challenged ballot

disfavored specific candidates, or determine whether

that degree was permissible. See 531 U.S. at 525-26

(noting that the “precise damage” to candidates

disfavored by the ballot labels was “disputed,” but

finding that they were in any event “surely place[d]

* * * at a political disadvantage,” and therefore

concluding that the ballot language “attempt[ed] to

‘dictate electoral outcomes’”).

The Court did not examine the extent to which

the ballot succeeded or may have been predicted to

have succeeded in achieving any precise electoral

outcome. The findings and conclusion above were

sufficient for the Court to determine that “[s]uch

‘regulation’ of congressional elections simply is not

authorized by the Elections Clause.” See id. at 526.

A similar analysis would be sufficient here as well.

B. The Rule in Cook v. Gralike Could

Also Serve as a Manageable Basis to

Review Maps Drawn After a

Decennial Census

Courts could also use the rule set out in Cook v.

Gralike to review a congressional district map

enacted after a decennial census. Amicus does not

believe that it is necessary for the Court to examine

this now in order for the Court to resolve the matter

at hand. However, Amicus provides this discussion

in case the Court finds it would be prudent or helpful

15

to examine the more general application of Cook

concurrent with examining its application to the

instant Texas redistricting. See Perry, 548 U.S. at

418-19 (2006) (opinion of Kennedy, J.) (finding

unreliable a standard that may be manageable for

reviewing a mid-decade redistricting but not one

done after a decennial census). The rule from Cook

affords the same standard for reviewing both, but

the analysis and evidence could differ.

In an optional mid-decade process, there may

well be enough evidence as to what the legislature

did—and why—for a trial court to reach a conclusion

without examining individual districts in detail.

Such is the case here, as just explained in Part III.A.

After a decennial census, states with more than

one Representative must revise their districts to

equalize their populations.

See Wesberry v.

Sanders, 376 U.S. 1, 18 (1964). There is a legitimate

and mandatory purpose to such an undertaking.

But a legislature in so doing, may well have further

goals and objectives—and many if not most will be

perfectly legitimate. A challenger claiming that the

legislature exceeded its authority as in Cook must

show how the map was purposefully configured to

favor or disfavor classes of candidates so as to dictate

the outcome. See Cook, 531 U.S. at 523-24.

Such a challenger would typically offer evidence

of cracking and packing with the intent to achieve

this purpose. Such evidence may include but not be

limited to the disregard of certain traditional

districting criteria that might reflect cracking and

packing likely voters for disfavored candidates:

16

contiguity,5 compactness,6 and minimizing splits of

counties and municipalities.7

The mere presence or lack of these factors alone

might not prove or disprove such cracking and

packing, but they may well be probative evidence.

See Rucho, 588 U.S. at 707 (quoting Vieth, 541 U. S.,

at 308–309 (Kennedy, J., concurring in judgment);

and then id. at 298 (plurality opinion) (criticizing the

value of these factors). Again, these criteria are not

determinative themselves, as Justices Kennedy and

5 While many states use a travel test—whether one can travel

from one point in a district to any other without leaving the

district—to assess contiguity, Amicus finds the rule used in

Kentucky more pertinent: “Generally, courts disfavor finding

one territory to be contiguous to another territory when the

only link between the two is a narrow corridor. Courts have

repeatedly held that when the only purpose the corridor serves

is to create the requisite contiguity, such a subterfuge cannot

[prevail].” Griffin v. City of Robards, 990 S.W.2d 634, 640 (Ky.

1999) (citations omitted) (considering contiguity in the context

of annexation); see also In re Apportionment L., 414 So.2d

1040, 1051 (Fla. 1982) (“[L]ands that mutually touch only at a

common corner or right angle cannot be regarded as

‘contiguous’ within the proper meaning of the word when

applying it in establishing house or senate districts.”).

A rigid geometric standard would not be too helpful in

assessing compactness. See, e.g., In re Legis. Districting of the

State, A.2d 292, 353–54 (Md. 2002) (asking whether the

General Assembly “fairly considered and applied” compactness

principles “in light of all of the [other related] constitutional

requirements”).

6

Amicus found that this

factor can reveal racial or partisan cracking that may be

hidden within a compact district, particularly where a straight

district line bisects a city or town.

7 In working with N.C. district maps,

17

Scalia pointed out in the passages in Vieth just cited,

but they can be helpful toward showing or

disproving the standard in the rule set out in Cook—

whether there was intentional cracking and

packing, or other features to favor or disfavor

candidates so as to dictate the outcome. And as in

Cook, “dictate” is not necessarily an absolute based

on an actual or predicted result, but rather reflects

a concerted intent to influence the election outcome.

See Cook, 531 U.S. at 525-26.

Lastly, application of these factors, particularly

as they are coupled with the rule set out in Cook, has

no sounding in proportionality. Cf. Allen v. Milligan,

599 U.S. 1, 43-44, 44 n.2 (2023) (Kavanaugh, J.,

concurring). A map that is shown not to violate the

rule set out in Cook may well have district election

results that are disproportionate to the statewide

vote.

The rule neither seeks nor requires

proportionality, though a map that severely violates

Cook may well be highly disproportionate.

*

*

*

*

*

The ongoing specter of state legislatures that

have or are considering whether to undertake a middecade redistricting in order to gain more seats for

their preferred party—or to respond to other states

that have done so—is truly repugnant to our

Constitution. And it puts states still on the sidelines

in an uncomfortable position of deciding whether to

join this fray. As has been shown, nothing in the

U.S. Constitution envisions or permits such a battle

among state legislatures to determine control of the

U.S. House of Representatives.

18

Amicus respectfully encourages this Court to

review the inconsistency between Cook and Rucho

as to the U.S. Constitution’s allocation of powers

among a state’s legislature and its voters. While

Congress may also enact statutes setting out policies

it prefers under the Elections Clause, enforcing the

allocation of powers among a state’s voters, and the

federal and state legislative branches is a duty for

the Courts. See Bell v. Wolfish, 441 U.S. 520, 562

(1979) (contrasting the Court’s responsibility to

“scrupulously” inquire into a violation of a

constitutional provision or statute, while leaving to

political officials the “wide range of ‘judgment calls’

that

meet

constitutional

and

statutory

requirements”); Highland Farms Dairy v. Agnew,

300 U.S. 608, 612 (1937) (warranting this Court’s

intervention in “a controversy affecting the

structure of the national government as established

by the provisions of the national Constitution”); cf.

El-Shifa Pharm. Indus. Co. v. United States, 607

F.3d 836, 852 (D.C. Cir. 2010) (Ginsburg, J.,

concurring) (“The result of staying the judicial hand

is to upset rather than to preserve the constitutional

allocation of powers between the executive and the

legislature.”); id. at 857 (Kavanaugh, J., concurring)

(noting that using the political question doctrine in

statutory cases would favor the Executive Branch

over the Legislative Branch without addressing

critical separation of powers issues).

As this Court said nearly a century ago:

The practical construction of Article I, § 4,

is impressive. * * * [L]ong and continuous

interpretation in the course of official action

19

under the law may aid in removing doubts as

to its meaning. This is especially true in the

case of constitutional provisions governing the

exercise of political rights, and hence subject to

constant and careful scrutiny.

Smiley v. Holm, 285 U.S. 355, 369 (1932).

CONCLUSION

In light of the foregoing, the Court should affirm

the judgment below. In the alternative, the Court

should note probable jurisdiction and order briefing

and argument on the following questions:

1. Considering Rucho v. Common Cause and

Cook v. Gralike, does the Elections Clause

afford a state legislature the authority to

favor or disfavor classes of candidates so as to

dictate electoral outcomes when it enacts

congressional districts?

2. Does the rule set out in Cook v. Gralike afford

federal courts with a standard by which they

could determine whether a mid-decade

enactment of new congressional districts

impermissibly exceeded the legislature’s

authority under the Elections Clause?

If the Court might find it helpful to concurrently

review more general application of the rule in Cook,

the Court could also request briefing and argument

on the following question:

20

3. Does the rule set out in Cook v. Gralike afford

federal courts with a standard by which they

could determine whether the enactment of

new congressional districts after a decennial

census

impermissibly

exceeded

the

legislature’s authority under the Elections

Clause?

Respectfully submitted,

Stephen M. Shapiro

5111 Westridge Road

Bethesda, MD 20816

(301) 229-6241

SteveS@md.net

March 19, 2026