Amicus Curiae Brief — Bush v. Vera

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TABLE OF AUTHORITIES CITED .........--+-++ ii

IDENTITY AND INTEREST OF AMICUS CURIAE ..... l

OPINION BELOW ...... 2... cece cere eee rceees 3

STATEMENT OF THE CASE ........----++eeee% 3

SUMMARY OF ARGUMENT .........---5-+e5% 3

pf‘) rr i ie ee ee 5

I RACIAL GERRYMANDERING IS

NEVER CONSTITUTIONAL .......--+-++: 5

of Brown v. Board of Education and the

Concept of Moral Equality .........--- 11

i. INCUMBENCY PROTECTION CANNOT

JUSTIFY RACIAL GERRYMANDERING ...... 16

A. American Government Is

TABLE OF AUTHORITIES CITED

Pena, SISU.S. _, 132 L. Ed.

29 158 (1995) 2... eee ee eee ee eeee

Ann Arundel County Republican

Central Committee v.

State Administrative Board

of Elections Laws,

781 F. Supp. 394 (D. Md.

DDE) acccvcdddevececcccseessr

(1962)... cece vcceseecvevcees

Brown v. Board of Education,

347 U.S. 483 (1954) ... 2. eee eee eee

Carey v. Population Services

International, 431 U.S. 678

|) eee

(| ee i io ic

Griswold v. Connecticut,

381 U.S. 479 (1965)... - ee eee eee

132 L. Ed. 2d 635 (1995)... 0. ce ee eee 2

Holder v. Hall, 512 U.S. __,

129 L. Ed. 2d 687 (1994)... 2. eee ees 12-13

League of United Latin American

Citizens v. Attorney General of

Texas, 501 U.S. 419 (1991) .. 2... eee ees 2

Mobile v. Bolden, 446 U.S

UE Web ca beescrcccncnccancecccecees 23

Miller v. Johnson, 515 U.S. __,

132 L. Ed. 2d 762 (1995)... 6. ee eee eee 11-12

Prosser v. Elections Board,

793 F. Supp. 859

(W.D. Wis. 1992) ...... 2. ee eee eee renee 20-21

Plessy v. Ferguson, 163 U.S. 537

UU 8-9,13,26

Reynolds v. Sims, 377 U.S.

0 |) ee i 17

Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) 0. cee eee ene 15

Roe v. Wade, 410 U.S. 113 (1973) ...... ee eee eee 10

Schrage v. State Board of Elections,

430 N.E.2d 483 (Il. 1981) ... 2... eee ee ee eee 21-22

Shaw v. Reno, 509 U.S. __,

125 L. Ed. 2d 511 (1993)... 2. eee eee eee 12,16,23

United Jewish Organizations of

Williamsburgh, Inc. v. Carey,

430 U.S. 144 (1977) 2... we eee ee eee 13,15

United States v. Reese, 92 U.S.

214 (1876) 0... cece ee eee eee eee e eens 11-12

U. S. Term Limits, Inc. v. Thorton,

514U.S. __, 131 L. Ed. 2d 881 (1995) .......---- 26

Village of Arlington Heights v.

Metropolitan House Development

Corp., 429 U.S. 252 (1977) ......--++- bat weds 23

Washington v. Davis, 426 U.S. 229

(IDTIG) oc cc ccccccccscccccscccccesessees 23

Wesberry v. Sanders, 376 U.S. 1

(| eee 25

Whitcomb v. Chavis, 403 U.S. 124

eer ee oe ea er 12

Wright v. Rockefeller, 376 U.S. 52

Se oP err ee a 10-13,16

Wygant v. Jackson Board of Education,

476 U.S. 267 (1986) . 0... ee ee ee eee eee 15

RULES

Supreme Court Rule 37... 1.66 ee eee eee ee reeee l

STATE CONSTITUTIONS

Ariz. Const. of 1912, Art. IV,

& © | error vere rere re eee ees ace 22

Conn. Const. of 1818, Art. TH, §3 ......---+- ee ees 22

La. Const. of 1913, Art XVI... 2... eee eee eee 22

Mass. Const. of 1780, Part I,

Rs SRE wo ccc ere ceccncecenecese 19-20

N.Y. Const. of 1894, Art. Ill,

SE ARE Pelee Peo 0 Pi a rar rr eee se 22

N.Y. Const. of 1938, Art HI, §5 .......-- eee eres 22

Pa. Const. of 1776, Art. V 2... 6. eee eee eee 19

Pa. Const. of 1838, Art. 1,§7 ......---- eee eeeee 22

Pa. Const. of 1873, Art. 1,§ 16 ......--0-0+ee sees 22

Tex. Const. Art. II], §26.......-- eee eee ceeeees 3

Va. Const. of 1776, §5 ... 2... cece eee reer ees 20

Wis. Const. of 1848, Art. IV, §4 ....----- eee ees 22

UNITED STATES CONSTITUTION

PU re Pee eRe RT 18,25

Thirteenth Amendment ........----- eee ee eeeees 7

Fourteenth Amendment ........---++++5: 3,6, 10-12,26

Fifteenth Amendment ........-- 550s eee eres 7, 11-12

MISCELLANEOUS

J. Barlow, Advice to the Privileged

Orders in the Several States

of Europe Resulting from the Necessity

and Propriety of a General Revolution

H. Belz, Equal Protection and

Affirmative Action, The Bill of

Rights in Modern America

(Bodenhamer & Ely, eds.,

Indiana University Press, 1993) .........--++: 10-11

A. Bickel, The Morality of

Consent (Yale Univ: Press 1975) ........--- ees 10

R. Bork, Neutral Principles and

Some First Amendment Problems,

GPT Bc Be BOE Hee cc cee i vccceccccceses 24

Gerrymandering: Fair Representation

for Minorities or a Dangerous

Recognition of Group Rights?

26 Rutgers L. J. 595 (1995) ...... 2. eee ee eens 24

T. Eastland and W. Bennett, Counting by

Race: Equality from the Founding

Fathers to Bakke and Weber

(Basic Books, Inc., N.Y., 1979)... ......---0-e00e 5,8

American Revolution: A

Partisan Gerrymandering, 9 Yale

Shapiro, Gerrymandering, Fairness,

and the Supreme Court,

33 UCLA L. Bev. 227 CISGS) ww ccc ccc cc eees 16

T. Sowell, A Conflict of Visions:

T. Sowell, Civil Rights: Rhetoric

or Reality? (1984)............-

The Federalist No. 51 (J. Madison)

(Rossiter ed., 1961) .........-.-

(Rossiter ed., 1961) .........--

(Rossiter, ed. 1961) .........--

G. Wood, Creation of the American

Republic, 1776-1789 (University

of North Carolina Press, 1969) ....

No. 94-805, 94-806, and 94-988

+

In the

Supreme Court of the United States

October Term, 1995

—>

GEORGE W. BUSH, Governor of Texas, et al.,

Appellant-Applicants,

v.

AL VERA, et al.,

Appellee-Respondents.

REV. WILLIAM LAWSON, et al., and ROBERT REYES, et al.,

Appellants,

v.

AL VERA, et al.,

Appellees

UNITED STATES OF AMERICA

Appellants,

v.

AL VERA, et al.

Appellees.

—~

On Appeal from the United States District Court

for the Southern District of Texas

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF APPELLEES, AL VERA, ET AL.

+

IDENTITY AND INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus

curiae in support of appellees, Al Vera, et al. All parties

the voting rights context before this Court including Shaw v.

Hunt, Supreme Court Docket Nos. 94-923, 94-924; Hays v.

Louisiana, 515 U.S. __, 132 L. Ed. 2d 635 (1995);

Chisom v. Roemer, 501 U.S. 380 (1991); and League of

United Latin American Citizens v. Attorney General of Texas,

501 U.S. 419 (1991).

PLF believes that racial classifications by government,

both in the voting rights context and otherwise, should be

inherently suspect and, absent extraordinary circumstances,

unconstitutional. This standard is particularly applicable

when congressional districts are gerrymandered on the basis

of race. PLF further believes that “incumbency protection,“

far from being a compelling interest to justify racial

gerrymandering, is actually destructive of American

democracy

+

Ge

OPINION BELOW

The opinion of the three-judge District Court finding

three of Texas’ congressional districts to be unconstitutional

as a violation of the Equal Protection Clause is reported at

Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994).

+

STATEMENT OF THE CASE

After the 1990 census, the State of Texas redrew its

congressional districts. See Tex. Const. Art. III, § 26. The

boundaries were drawn with knowledge of the ethnicity of

every voter in the state and were drawn to channel indivi-

duals

the Fourteenth Amendment of the United States Constitubon

unless they are narrowly tailored tw further a compelling

governmental interest. Racial classifications ted w suffrage

et i

HT

THe

Congressional Districts 18, 29, and 30 to strict scrutiny and

found them lacking.

cout Villar toiliading GAMUIAES is Gallic? taes of fttme

Moreover, while most jurisdictions go to great lengths

to hide the partisan nature of their districting, Texas

proclaims it proudly. When a legislature seeks to guaranty

incumbency, whether through racial or other classification,

the goal of representative government is defeated. In the

American political tradition, the intent to gain power by

some method other than appealing to voters is just plain

wrong. When such gerrymandering has the effect of

segregating Americans by race, it violates the Constitution

>

Fathers to Bakke and Weber 9-10 (Basic Books, Inc., N.Y.,

see also T. Sowell, A Conflict of Visions:

wie

Ideological Origins of Political Struggles 121-40 (William

Morrow & Co., N.Y., 1987).

America was founded on the basis of moral equality,

as it is so eloquently phrased in the Declaration of

: “We hold these truths to be self-evident, that

all men are created equal, that they are endowed by their

creator with certain unalienable rights, that among these are

life, liberty, and the pursuit of happiness." The institution of

meres erp mon Syrah ty on

lessly inconsistent with it. For nearly a century, this

incompatibility provoked bitter political debate, culminating

with Abraham Lincoln declaring an end to slavery in 1863

and the triumph of the Union in 1865. The Fourteenth

Amendment enshrined the victorious concept of moral

equality after the Civil War and this concept was still the

norm through the enactment of the Civil Rights Act of 1964

and the Voting Rights Act of 1965. Only within the last

25 years has devotion to numerical equality threatened to

subsume moral equality as the basis for American politics.

A. Historical Basis for Moral Equality

Moral equality was central to the philosophical

principles which inspired the founding of the American

republic. In John Locke’s Second Treatise, the philosopher

argued that “all men are naturally in ... a state of perfect

freedom to order their actions and dispose of their posses-

sions and persons as they think fit, within the bounds of the

law of nature, without asking leave or depending upon the

will of any other man." J. Locke, Two Treatises of

Government 121 (T. Cook ed., 1947), cited in H. Jaffa, How

to Think About the American Revolution: A Bicentennial

Celebration 40 (Durham, N.C., 1978) (Jaffa). This concept

of natural freedom and equality provided that the just powers

of government in the American political tradition could only

be derived from the consent of the governed. Because the

right of consent is itself derived from the equality of all

aruete ETAT HTTE | 2:

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the principle of equality was logically necessary to the idea

of self-government. Lincoln's First Inaugural Address

(March 4, 1861), reprinted in Commager at 386-88. Self-

government, by definition, requires the assumption that all

humans possess free will and that all are morally

autonomous. In this sense, all individuals are created equal

and for one person to deal with another, because of race, in

ways that deny or diminish the other’s intrinsic worth as a

moral agent is to deny the very basis upon which self-

government is possible. Eastland at 55-56.

In his message to Congress on July 4, 1861, Lincoln

defined the cause of the Union as the preservation of “that

form, and substance of government, whose leading object is,

to elevate men--to lift artificial weights from all shoulders--to

clear the paths of laudable pursuit for all--to afford all, an

unfettered start, and a fair chance, in the race of life." 4 The

Collected Works of Abraham Lincoln 438 (R. Basler ed.,

1953), cited in Jaffaat 34. Thus, republican government, in

Lincoln’s view, necessitated the elimination of slavery

because it was incompatible with the principle of moral

equality. Lincoln believed that this principle was higher than

any other: It defined republican government. Eastland

at 47.

The passage of the Civil War Amendments in 1865-

1870 highlighted the primacy of moral equality. These

Amendments spoke only of individuals, not groups:

[E}quality is an individual attribute that had no

connection with class or race; the [Fourteenth]

[A}]mendment extended the same rights to all--

there could be no need to mention race or

sections as happened to suit the demands of

one or another class or interest group af any

particular ime.

:o-

Pole at 180-81. This moral equality of the individual,

espoused by President Lincoln, led to the judicial concept of

a color-blind Constitution:

[Jn view of the Constitution, in the eye of the

law, there is in this country no superior,

dominant, ruling class of citizens. There is no

caste here. Our Constitution is color-blind,

and neither knows nor tolerates classes among

citizens. In respect of civil rights, all citizens

are equal before the law. The humblest is the

peer of the most powerful. The law regards

man as man, and takes no account of his

surroundings or of his color when his civil

rights as guaranteed by the supreme law of the

land are involved.

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J.,

dissenting). Sadly, the moral equality and constitutional

protection of the individual under a color-blind Constitution

was corrupted by the doctrine of “separate but equal,” an

invidious concept that haunted America for more than a half-

century.

On May 17, 1954, the Court once and for all declared

“that all men are created equal,” and that our Constitution

would stand for nothing less. “Separate” is “inherently

unequal." Brown v. Board of Education, 347 U.S. 483, 495

(1954). The Court’s opinion would provide the legal

foundation for Dr. Martin Luther King’s “dream"-that his

children would “live in a nation where they will not be

judged by the color of their skin but by the content of their

character." A. Kull, A Color Blind Constitution 166

(Harvard University Press, 1992). Moral equality, funda-

mental democratic principles, and the Constitution were

restored as the supreme law of the land.

How, then, have states been not only allowed but

required to segregate congressional districts? Some general

- 10-

observations can be accurately made: The pursuit of

numerical, rather than moral, equality unfortunately has been

embraced by virtually all institutions of government and

some public opinion. See A. Bickel, THE MORALITY OF

CONSENT 133 (Yale Univ. Press 1975). The most disturbing

aspect of this shift in political thought is the disavowal of

individual rights in favor of a collective group rights concept

of equality. All blacks are held to be victims of discrimi-

nation and hence entitled to compensation. All whites are

held to have benefited unjustly from the system of racial

discrimination and are guilty. These assumptions stand in

fundamental opposition to the universal principle of

individual rights that hes been the moral and intellectual

foundation of the American republic.' See H. Belz, Equal

Protection and Affirmative Action, The Bill of Rights in

Modern America 173 (Bodenhamer & Ely, eds., Indiana

University Press, 1993) (Belz).

' The Court’s constant recognition of fundamental rights as

individual rights is so oft-stated that only a few examples

will suffice to make the point here. In Arizona Governing

Committee for Tax Deferred Annuity and Deferred Compen-

sation Plans v. Norris, 463 U.S. 1073, 1083 (1983), this

as individuals, not “‘as simply components of a racial,

religious, sexual, or national class."" Moreover, in

Griswold v. Connecticut, 381 U.S. 479 (1965),

Eisenstadt v. Baird, 405 U.S. 438 (1972), and Roe v. Wade,

410 U.S. 113 (1973), the Court identified in the Due Process

Clause of the Fourteenth Amendment a fundamental

individual right to decide whether or not to beget or bear a

child. Carey v. Population Services International, 431 U.S.

678, 688-89 (1977).

-il-

B. Racial Gerrymandering Violates the

Holding of Brown v. Board of Education

and the Concept of Moral Equality

By allowing states to racially gerrymander their

electoral districts, the despicable doctrine of "separate but

equal," under the guise of “separate but better off," Wright v.

Rockefeller, 376 U.S. 52, 62 (1964) (Douglas, J.,

dissenting), or “separate but proportional," Belz at 162, is

restored under the sanction of law. In 1964, Justice Douglas

asserted that there could be no legal distinction between

segregation in voting and segregation elsewhere.

Wright, 376 U.S. at 62, 67 (Douglas, J., dissenting) (internal

citations omitted; emphasis in original); see also Miller v.

Johnson, 51S U.S.__, 132 L. Ed. 24 762, 776 (1995). To

allow states to be anything but race-neutral in the drawing of

electoral districts is t© deny moral equality and repudiate

Brown.

First, racial segregation in redistricting is a per x

violanon of the Fourteenth and Fifteenth Amendments to the

Constitution. The Fifteenth Amendment is an “exempton

from discrimination in the exercise of the elective franchise

on account of race, color or previous condition of servitude. °

-12-

United States v. Reese, 92 U.S. 214, 218 (1876). There are

no codicils or clauses in this Amendment with respect to a

particular race--it is wholly color-blind and forbids ail

discrimination in voting, not merely discrimination that social

engineers anoint as “invidious.” Similarly, the Fourteenth

Amendment forbids racial discrimination in regards to demo-

cratic elections: “Its central mandate is racial neutrality

in governmental decisionmaking." Miller, 132 L. Ed. 2d

at 771. In Wright, Justice Goldberg faithfully united the

moral equality of Brown, the Fourteenth Amendment, and the

harm of racial gerrymandering: “Given this settled principle

that state-sanctioned racial segregation is unconstitutional per

se,” he wrote, “the Court’s decisions since Brown v Board

of Education [have held] that harm to the Nation as a whole

and to whites and Negroes alike inheres in segregation. The

Fourteenth Amendment commands equality, and racial segre-

gation by law is inequality." Wright, 376 U.S. at 69

(Goldberg, J., dissenting). Although racial discrimination

unrelated to elections (i.¢., “affirmative action” in limited,

remedial circumstances) has been allowed by this Court to

stand in the past, “[oJur Constitution has a special thrust

when it comes to voting,” as emphasized by the Fifteenth

Amendment. Whitcomb v. Chavis, 403 U.S. 124, 180 (1971)

(Douglas, J., dissenting in part and concurring in part).

Racial gerrymandering cannot be justified in light of the

dictates of the Fourteenth and Fifteenth Amendments and the

moral equality of Brown.

Second, segregating individuals by skin color into

racial districts is little better than racial apartheid or caste

systems: “A reapportionment plan that includes in one

district individuals who belong to the same race, but who are

otherwise widely separated by geographical and political

boundaries, and who may have little in common with one

another but the color of their skin, bears an uncomfortable

resemblance to political apartheid.” Shaw v. Reno, S09 U.S.

__, 125 L. Ed. 2d $11, 529 (1993); see also Holder v.

=

Hall, 512 U.S. __, 129 L. Ed. 2d 687, 710-11 (1994)

(Thomas, J., concurring in the judgment). The analogy to

apartheid and caste systems is not novel: Three decades ago

Justice Douglas argued that redistricting by racial segregation

"is comparable to the Electoral Register System which

Britain introduced into India." Wright, 376 U.S. at 63

(Douglas, J., dissenting). In that political caste system,

"*[nJo one who is not a Sikh, a Muhammadan, Anglo Indian,

European or an Indian Christian, is entitled to be included in

a Sikh, Muhammadan, Anglo Indian, European or an Indian

Christian constituency respectively.’" Jd. at 63 n.5. This

system was allegedly justifiable because, inter alia, “Muslims

are a distinct community with additional interests of their

own, which are not shared by other communities.” Jd. at 63.

This sounds remarkably similar to the current justification

for racial gerrymandering in America. A caste system might

allow racial clans to be organized into a tribal federation,

VOTES COUNT? 132 (Harvard Univ. Press 1987).

But “[t}here is no caste here. Our Constitution is

color-blind, and neither knows nor tolerates classes among

citizens." Plessy, 163 U.S. at 559 (Harlan, J., dissenting).

By permitting racial segregation in redistricting, we

Pena, SiS U.S. __, 132 L. Bd. 2d 158, 190 (1995) (Scalia,

J., concurring in part and concurring in the judgment),

United Jewish of Williamsburgh, Inc. v. Carey,

430 U.S. 144, 187 (1977) (Burger, C_J., dissenting) (noting

the retreat from the ideal of the American “melting pot”).

In fact, Houston, Texas, home of challenged districts 18 and

29, has proven to be almost a model of integration.

"African-American and Hispanic populations inhabit large

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- 15 -

compelling state interest that would allow this racial

classification to survive strict scrutiny. The only possible

remedy when a governmental entity racially gerrymanders is

to replace it with a race-neutral districting scheme. United

Jewish Organizations, 430 U.S. at 186 (Burger, C.J.,

dissenting) (internal citation omitted). Only one govern-

mental interest can maintain racial classifications under strict

scrutiny: remedying the present effects of identified past

illegal discrimination by a particular government entity. See

Adarand v. Pena, 132 L. Ed. 2d at 188; Wygant v. Jackson

Board of Education, 476 U.S. 267, 274-77 (1986);

Richmond v. J.A. Croson Co., 488 U.S. 469, 524 (1989)

(Scalia, J., concurring in the judgment). This “remedy

rationale” might be appropriate in the context of govern-

mental hiring and contracting: A minority individual may

have been denied the opportunity to compete for government

employment or contracts because of his or her race and, by

giving that individual a preference in the hiring/contracting

process, an employer compensates that individual for a past

opportunity denied.

This rationale, however, cannot square with the

conditions of voting and redistricting. There are no residual

losses from “bad” elections and redistricting schemes of the

past: Each time a governmental entity redistricts its

jurisdiction, the slate is cleaned. The fact that a previous

jhtdinaiiniin Mion? oe -“aieedin tof

" or any other form of “racial borough,” “[njo old

ustice is undone, but a new injustice is inflicted.”

Bork, The Tempting of America 106 (The Free Press,

at 119. The only constitutional

=

emphatically

place.

"[G]overnment has no business designing electoral

Wright, 376 U.S

INCUMBENCY PROTECTION CANNOT

JUSTIFY RACIAL GERRYMANDERING

Gerrymandering, 9 YALE L. AND POL. REV. 301, 305 (1991)

(Third Criterion). This Court has long recognized that

att.

antidemocratic practices can effectively poison democratic

institutions and prevent reform. Justice Clark, concurring in

Baker v. Carr, 369 U.S. 186, 258 (1962), wrote that he

would “not consider intervention by this Court into so

delicate a field if there were any other relief available to the

people of Tennessee” by which they could effect a reappor-

tionment of their legislature. See also Reynolds v. Sims,

377 U.S. 533, 570 (1964) (lack of potitical remedy results in

"minority stranglehold on the State Legislature”).

The court below recognized that perversion of

democracy which gerrymandering engenders: "The final

result seems not one in which the people select their

representatives, but in which the representatives have selected

the people.” Vera, 861 F. Supp. at 1334. Nonetheless, the

court appeared more concerned with the degree of incumbent

protection than the use of the concept isi general. The court

found “legitimate” the “generalized ... goal of incumbent and

seniority protection” but balked at “districts ... drawn on a

block-by-block or neighborhood- or town-splitting level to

corral voters perceived as sympathetic to incumbents or to

exclude opponents of the incumbents." /d.

A. American Government Is Dependent

upon Voters Choosing Representatives;

Not Representatives Choosing Voters

Politicians have a personal interest in preserving

their incumbencies, and a political interest in perpetuating

or expanding their party’s political power, so they typically

draw district lines in a way that serves these interests.

See generally B. Cain, THE REAPPORTIONMENT PUZZLE

(1984); B. Grofman, POLITICAL GERRYMANDERING AND THE

Courts (1990). Citizens, on the other hand, have a

different interest at stake: the election of officials who will

represent them effectively, an essential element of a

democratic republic.

7:

Gerrymandering violates the American constitutional

tradition by conceding to legislatures the power of self-

selection. Self-constitutive legislatures make no sense under

a Constitution founded on the dispersion of power. Legis-

latures are legislatures not because they say they are, but

because a constitution says they are. Of course, the

Constitution does not specifically forbid gerrymandering, any

more than it specifically forbids the excessive, unfair, or

abusive exercise of any delegated power, but the democratic

ideals embedded in the Constitution certainly forbid

legislatures from insulating themselves from the popular will.

U.S. Const. Art. I, § 2 (“chosen ... by the People”). The

members of a partially self-constituted legislature depend to

a degree upon one another rather than upon their constituents

for their tenure in office. Whatever “representation” means,

it cannot possibly mean that. Third Criterion at 304-05. As

the court below noted, “the bedrock principle of self-

government, the interdependency of representatives and their

constituents, is thus undermined by ignoring traditional

districting principles.” Vera, 861 F. Supp. at 1334 n.43.

The Founding Fathers valued the faction-diluting

character of representation by place. Rather than

representation by wealth, by profession, or any other

principle of organization which would define in advance the

Sale Rees Oe er ee ee

politics, the authors of the Constitution deliberately chose

geographical representation. They believed this principle

possessed a randomizing effect on the make-up of the voting

public. Third Criterion at 307 n.29. Thus, for example,

when Alexander Hamilton argued in the Federalist Papers

that the “wealthy and the well-born"--a faction--would not

come to dominate the legislature through abuse of the voting

process, he asked:

Are the wealthy and the well-born, as they are

called, confined to particular spots in the

-19-

several States? Have they, by some miracu-

lous instinct of foresight, set apart in each of

them a common place of residence? Are they

only to be met with in the towns or cities? Or

are they, on the contrary, scattered over the

face of the country as avarice or chance may

have happened to cast their own lot or that of

their predecessors?

The Federalist No. 60 at 370-71 (A. Hamilton) (Rossiter, ed.

1961). A gerrymander defeats this randomizing effect by

picking and choosing the factions which will exist within

particular boundaries. James Madison echoed this view,

particularly emphasizing the expectation that incumbents will

not serve in perpetuity:

[TJhe House of Representatives is so consti-

tuted as to support in the members an habitual

recollection of their dependence on the people.

Before the sentiments impressed on their

minds by the mode of their elevation can be

effaced by the exercise of power, they will be

compelled to anticipate the moment when their

power is to cease, when their exercise of it is

to be reviewed, and when they must descend

to the level from which they were raised;

there forever to remain unless a faithful

discharge of their trust shall have established

their title to a renewal of it.

The Federalist No. 57 at 352 (J. Madison) (Rossiter, ed.

1961).

Judicial tolerance for partisan gerrymandering

contradicts the traditional American belief that government

"ought to be instituted for the common benefit ... and not for

the particular emolument of any single man, family, or set of

men.” See, e.g., Pa. Const. of 1776, Art. V; Mass. Const.

of 1780, Part I, Art. VII ("Government is instituted for the

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Common good; for the protection, safety, prosperity and

happiness of the people; and not for the profit, honor, or

private interest of any one man, family, or Class of men")

cited in Williams, The Courts and Partisan Gerrymandering:

Recent Cases on Legislative Reapportionment, 18 §S. Ill. U.

L. J. 563, 596 (1994). The founders of our nation believed

it was essential “that the members of (the legislature) may be

constrained from oppression, by feeling and participating the

burdens of the people, they should, at fixed periods, be

reduced to a private station, return to that body from which

they were originally taken, and the vacancies supplied by

frequent, certain, and regular elections." Jd. (citing

Va. Const. of 1776, § 5). As President Andrew Jackson

noted in his 1829 Message to Congress, "In a country where

offices are created solely for the benefit of the people,

no one man has any more intrinsic right to official station

than another.” /d. (citing R. Hofstader, THE AMERICAN

POLITICAL TRADINION 64 (1948)).

The interdependence between legislators and

constituents is furthered by communication during election

campaigns and during the legislator’s term of office. A

gerrymandered district, which may run for miles in opposite

directions, places an undue burden on the communication

necessary for a legislator to represent constituents properly.

On the other hand, as many states have long known,

contiguity and compactness further this goal. By 1918,

25 state constitutions explicitly required that districts be

composed of contiguous territory. See Williams, 18 S. Ill.

U. L. J. at 571-72 (citing C. Kettleborough, THE STATE

CONSTITUTIONS (1918)). In the other states this was not

required explicitly, but districts were coextensive with

existing political subdivisions, obviating the need for such a

requirement. Id.

Prosser v. Elections Board, 793 F. Supp. 859, 863

(W.D. Wis. 1992), explained the complementary rationale

for compactness.

x S

The objections to bizarre-looking

They are based on a recognition that repre-

sentative democracy cannot be achieved

merely by assuring population equality across

districts. To be an effective representative, a

legislator must represent a district that has a

reasonable homogeneity of needs and interests;

otherwise the policies he supports will not

represent the preferences of most of his consti-

tuents. There is some although of course not

a complete correlation between geographical

propinquity and community of interests, and

therefore compactness and contiguity are

desirable features in a redistricting plan.

Compactness and contiguity also reduce travel

time and costs, and therefore make it easier

for candidates for the legislature to campaign

for office and once elected to maintain close

and continuing contact with the people they

represent. Viewing legislators as agents and

the electorate as their principal, we can see

that compactness and contiguity reduce the

"agency costs” of representative democracy.

See also Third Criterion at 339-51 (arguing in favor of a

mathematical compactness standard and suggesting several

models).

The Illinois Supreme Court’s opinion in Schrage v.

State Board of Elections, 430 N.E.2d 483 (ill. 1981),

demonstrates how the compactness standard serves as a check

against gerrymandering. The court noted that compactness

has been held to mean “closely united, territorially” and not

to "require perfect compactness as in a circle or a square."

Id. at 486. In other words, districts must be “reasonably

have, after all, a representative form of The

creation of a representative district which is extremely

elongated and not closely united’ impedes vital

precinct alignments, a few with populations as low as 20

voters.” Vera, 861 F. Supp. at 1325.

2 At one time nearly every state’s constitution provided

E.g., Ariz. Const. of 1912, Art. IV, Pt. 2, $ 1 (amended

1982); Conn. Const. of 1818, Art. III, § 3 (amended 1965).

See also La. Const. of 1913, Art. XVIII (providing that

districts would consist of parishes or wards of the City of

New Orleans). Later, most constitutions had provisions

similar to one found in Colorado’s 1876 constitution, which

provided that "[nJo county shall be divided in the formation

of a senatorial or representative district." Colo. Const.

of 1876, Art. V, § 47. A few states also provided that

towns, N.Y. Const. of 1938, Art. III, § 5 (amended 1991);

boroughs; Pa. Const. of 1873, Art. II, § 16 (amended

1969); city wards, Pa. Const. of 1838, Art. I, § 7; precincts,

Wis. Const. of 1848, Art. IV, § 4; or even city blocks, N.Y.

Const. of 1894, Art. III, § 4 (amended 1991); could not be

divided between districts. See Williams, 18 S. Ill. U. L.J.

at 570.

- 23.

B. The Law Does Not Support Blatant

Incumbency Protection as a Legitimate

Reason for Districting by Race

The majority in Shaw v. Reno, 125 L. Ed. 2d 511,

appropriately did not base the constitutionality of racially

gerrymandered districts on cases like Washington v. Davis,

426 U.S. 229, 239 (1976), and Village of Arlington

Heights v. Metropolitan House Development Corp., 429 U.S.

252, 264-65 (1977), in which this Court held that an

cases. Shaw, 125 L. Ed. 2d at 537. Washington v. Davis

and its progeny involved challenges io legislative action that

served clearly legitimate governmental interes and thus

would have been unquestioned but for its impact on

minorities. In Washington. black plaintiffs challenged the

jurisdiction’s use of test scores to make hiring decisions, a

legitimate procedure, assuming that the test was relevant to

job qualifications. In Mobile v. Bolden, 446 U.S. 55

(1980), the challenge was to at-large elections, at the time

the most common method of electing local governments in

the nation. Jd. at 60-67.

The decision challenged in Shaw was of a different

order. Drawing districts down interstate highways is not an

otherwise legitimate action that just happens to have a racial

impact. North Carolina drew the challenged district solely

to have a racial impact. Shaw, 125 L. Ed. 2d at 521.

Shaw’s detractors argue that creating bizarre districts

is otherwise legitimate because compactness is not a

requirement of state or federal law. They note that such

districts are not per se unconstitutional and most states,

The citizens of North Carolina who set in motion the

challenge that resulted in this Court’s decision in Shaw v.

Reno would surely have questioned the legitimacy of a

congressional district drawn down an interstate highway,

regardless of its alleged purpose. In the context of a voting

district, “otherwise legitimate” must mean that it serves some

pr or lie sige en yest ete

people together by race. Butler, Affirmative Racial

Gerrymandering: Fair Representation For Minorities or a

Dangerous Recognition of Group Rights? 26 RUTGERS L.J.

The term “neutral principles,” as used in constitu-

tional jurisprudence, refers to value judgments having a

source such as the text of the constitution, history and

tradition, or “original intent," as opposed to the individual

preferences of judges. See generally R. Bork, Neutral

Principles and Some First Amendment Problems, 47 IND. L.

J. 1 (1971). These are a source of judicial restraint and a

check on judicial activism. In the redistricting sphere,

“neutral principles” must be defined criteria for redistricting

having sources other than legislators’ individual preferences

While even the use of neutral criteria cannot be expected to

result in completely “neutral redistricting"--maps which are

completely devoid of bias in favor of one party--because any

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given district’s boundaries will almost inevitably favor one

party, neutral principles ensure that such bias will only occur

naturally, because of the distribution of people within a cer-

tain geographic area. Williams, 18 S. Ill. U. L.J. at 569-70.

This theme was expounded upon in Ann Arundel

County Republican Central Committee v. State Administrative

Board of Elections Laws, 781 F. Supp. 394 (D.Md. 1991),

in which dissenting Judge Niemeyer concluded that the

Maryland congressional map violated Article 1, Section 2, of

the United States Constitution, which directs that the "House

of Representatives shall be composed of Members chosen ...

by the People of the several States." Jd. at 403. Niemeyer

reasoned that, because House members were to be chosen by

"the People,” in contrast to senators chosen by state

legislators, any tinkering by a legislature intended to

impose its preferences on congressional elections must be

unconstitutional. Jd. at 403-08. Niemeyer also noted that

language from early United States Supreme Court decisions

on gerrymandering “require{d] that representation of the

people be direct and equal" (referring to Wesberry v.

Sanders, 376 U.S. 1 (1964), quoted in Ann Arundel, 781 F.

Supp. at 402). From this, he inferred that a legislature

“must rely on available neutral criteria" when engaged in

redistricting. 781 F. Supp. at 407.

Judge Niemeyer’s dissent recounted the tawdry polit-

ical maneuvering by incumbent congressmen to influence

Maryland legislators to save their districts. Jd. at 408-09.

Niemeyer concluded that

the driving force behind the placement of the

new district boundaries was a desire to

promote the election bids of certain incumbent

representatives at the expense of other, less

senior incumbents. The Constitution gives to

the voters of Maryland a right to make their

own choices about reelecting their present

The Court recently ruled that the popular tool of term

limits cannot be employed by the voters to contradict the

manipulation of the electoral process by incumbents to favor

their own reelection to the Congress. U. S. Term Limits,

Inc. v. Thorton, 514 U.S. __, 131 L. Ed. 2d 881, 921

(1995). In this case, the Court should address the other side

of that issue and rule that the reelection of incumbents is not

a legate cits Mies &® juelly Be menguaien of

congressional district lines.

—~—

CONCLUSION

"The destinies of the two races in this country are

indissolubly linked together, and the interests of both

require that the common government of all shall not permit

the seeds of race hate to be planted under the sanction of

law." Plessy, 163 U.S. at 560-61 (Harlan, J., dissenting).

Justice Harlan’s words, founded on the Fourteenth

Amendment and given legal credence by Brown v. Board of

Education, required the end of segregation in buses, in

schools, and in districting. Moreover, racial

cannot be saved by a resort to the “pathology of democracy,”

political gerrymandering. The Court should uphold the

legacy of truth in Justice Harlan’s dissent and the moral

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