# Amicus Curiae Brief — Bush v. Vera

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0574%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1172

## Text

ee Oe

BEST AVAILABLE COPY

Page

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:
iii a stilted H
gist rit at lait :
Hetil ey
PIU AT TOSS eT ee
ft edie i i
PATA ees tT

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

4 ob

a a

iil

al att
HH 7 TH
itt ae

ps:
Hus
| it

i!
uh

- 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

- 20 -

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

- 25 -

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

Pacific Legal Foundation
2151 River Plaza Drive,
Suite 305
Sacramento, California95833
Telepttone: (916) 641-8888
Attorneys for Amicus Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0574%3A13. Public record. Not legal advice.