Amicus Curiae Brief — League of United Latin American Citizens v. Perry

_--*. Luoraras & U2, | re - -

FILENM

@™ (Y ® (3) JAN 1 0 2095

Nos. 05-204, -254,

276 & -439 | UFHCEOF THE CLERK

IN THE

Supreme Court of the United States

LEAGUE OF LATIN AMERICAN CITIZENS, et al.,

TRAVIS COUNTY, TEXAS, ef al.,

EDDIE JACKSON, ef al.,

GI FORUM OF TEXAS, ef al.,

Appellants,

Vv.

RICK PERRY, ef al.,

Appellees.

On Appeal from the United States District Court

for the Eastern District of Texas

BRIEF OF THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. AS

AMICUS CURIAE IN SUPPORT OF APPELLANTS

THEODORE M. SHAW

Director-Counsel

JACQUELINE A. BERRIEN

*NORMAN J. CHACHKIN

DEBO P. ADEGBILE

CHINH Q. LE

JENIGH J. GARRETT

NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.

99 Hudson Street, 16" Floor

New York, NY 10013

(212) 965-2200

*Counsel of Record

Attorneys for Amicus Curiae

Table of Authorities

Interest of Amicus Curiae

Introduction and Summary of Argument

TABLE OF CONTENTS

ARGUMENT —

A.

Districts In Which Voters Of A Particular

Minority Group Do Not Constitute 50% Of

The Relevant Population, But Who Are Able

To Elect Candidates Of Their Choice In

Combination With Other Minority Voters, Or

With Reliable Crossover Votes From The

Population Majority, Meet The First Gingles

Precondition For A Viable Section 2 Claim ....

izing “Crossover” or “Coalition”

Districts under Section 2 Is Consistent with

the Statutory —- Structure and

Intent, and also with This Court’s Voting

Rights Act Jurisprudence ............-..+-.

Section 2 Claims Involving “Coalition” or

“Crossover” Districts Are Governed by

Manageable Standards Already Familiar to

Federal Courts from Past Section 2 Litigation ..

Whatever Limitations, If Any, The Court

Places Upon Political Gerrymanders, It Is

Essential That They, Like Other

Redistrictings, Remain Subject To

Meaningful Scrutiny Under Section2 .........

14

TABLE OF CONTENTS (continued)

Page

A. The Doctrine that Racial Cleavages in Political

Party Affiliation Negate the Significance Under

Section 2 of Racial Voting Patterns

Misconstrues this Court’s Section 2

PD Scie dvccabsageroseneuahe ends 18

B. The Fifth Circuit’s Partisanship Exception to

the Second and Third Gingles Preconditions

Ignores the Extent to which Race Has Become

Implicated in Partisan Alignment ............ 23

C. Whether or Not It Holds that There Are

ama Limits to Partisan

in the Redistricting Process,

ry ss Court Should Explicitly Disapprove the

Fifth Circuit’s Unique Partisanship Exception

RPE voccncdacccedescnctedeseuceens 26

SD 6. cu cee ecckssvciessbedicsssensedet eden 27

TABLE OF AUTHORITIES

Cases:

Beer v. United States, 423 U.S. 130 (1976) ............ 16

Brewer v. Ham, 876 F.2d 448 (5" Cir. 1989) .......... 11

Bush v. Vera, 517 U.S. 952 (1996) .........0. 022 e eee l

—

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Campos v. City of Baytown, Texas, 840 F.2d 1240

(5" Cir. 1988), cert. denied, 492 U.S. 905 (1990) ... 11

Chisom v. Roemer, 501 U.S. 380 (1991) ............... I

City of Mobile v. Bolden, 446 U.S. 55 (1980) ........... l

Concerned Citizens v. Hardee County Bd., 906

PGES ON, BOD, Soc tucuvbddscccoedeosss 11

Ga. v. Ashcroft, 539 U.S. 461 (2003) ............. passim

Goosby v. Town Bd. of Hempstead, 180 F.3d 476

PO ee Ce er ee SP ee ae 23

Growe v. Emison, 507 U.S. 25 (1993) ..........0200055 7

Holder v. Hall, 512 U.S. 874 (1994) ...........60055. 15

Houston Lawyers’ Ass'n y. Attorney General of

Pe, Fae Ge GO CPOE bo kd cSddewcncctocsvese !

Jackson v. Perry, 160 L. Ed. 2d 252 (2004) ........... 7n

iv

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Johnson v. Cal., 162 L. Ed. 2d 129 (2005) ........... 22n

Johnson v. DeGrandy, 512 U.S. 997 (1994) ...... 7, 12, 13

Ketchum v. Byrne, 740 F.2d 1398 (7® Cir. 1984) ...... 10n

League of United Latin American Citizens v.

Clements, 999 F.2d 831 (5® Cir. 1993),

cert. denied, 510 U.S. 1071 (1994) .......... 1, 20, 26

League of United Latin American Citizens v.

Midland Ind. Sch. Dist., 812 F.2d 1494 (5"

Cir.), vacated and aff'd on other grounds,

tt a ee ay re 11

Metts v. Murphy, 363 F.3d 8 (1* Cir. 2004) ............. 7

NAACP vy. Button, 371 U.S. 415 (1963) ...........00065 ]

Perez v. Pasadena Ind. Sch. Dist., 165 F.3d 368

(5 Cir. 1999), cert. denied, 528 U.S. 1114 (2000) ...7

Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997) ... 15

Vv

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Session v. Perry, 298 F. Supp. 2d 451 (E.D.

Line kee hece beekwaeee 6-7, 16, 17, 22

Shaw v. Hunt, 517 U.S. 899 (1996) ......cccceecceeeee ld

Thornburg v. Gingles, 478 U.S. 30 (1986) ........ passim

United States v. Hays, 515 U.S. 737 (1995) ............ |

Uno v. City of Holyoke, 72 F.3d 973 (1* Cir. 1995) ..... 23

United States v. Charleston County, 365 F.3d 341

Ne ee ee ake 23

Valdespino v. Alamo Heights Ind. Sch. Dist., 168

F.3d 848 (5" Cir. 1999), cert. denied, 528

TT eT TYTN A TITEL ELITIST 7

Vieth v. Jubilirer, 541 U.S. 267 (2004) ......... 5, 21, 26n

Voinovich v. Quilter, 507 U.S. 145 (1993) ........-. 7,13

White v. Regester, 412 U.S. 755 (1973) .....00...0eees 14

vi

TABLE OF AUTHORITIES (continued)

Page

Constitution and Statutes:

a ME LAD a. ounancntccaludaedends 26n

Voting Rights Act of 1965, Section 2,

Se SE EEE ch cecnWescdcavetenescas passim

Other Authorities:

Mike Allen, RNC Chief to Say It Was ‘Wrong’ to

Exploit Racial Conflict for Votes, WASHINGTON

PO ae CEE ‘hoes cocaWonenaecneses 24-25

Mary Frances Berry & John W. Blassingame, LONG

MEMORY; THE BLACK EXPERIENCE IN AMERICA

DN tt 34ckebbekdine beNatiebatiodnaneanne ns 25

Thomas B. Edsall & Mary D. Edsall, CHAIN

REACTION; THE IMPACT OF RACE RIGHTS, AND

TAXES ON AMERICAN POLITICS (1991) ............ 24

Richard L. Engstrom, The Reincarnation of the Intent

Standard: Federal Judges and At-Large Election

Cases, 28 How. L.J. 495 (1985) ... 2.0... eee eee 21

vii

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Paul Frymer, UNEASY ALLIANCES; RACE AND PARTY

COMPETITION IN AMERICA (1999) ...........405. 25

Bernard Grofman & Lisa Handley, /ssues in Voting

Rights, 65 Miss. L.J. 205 (1995) ........... 20, 21, 23

Bernard Grofman, Lisa Handley, & David Lublin,

Drawing Effective Minority Districts: A

Conceptual Framework and Some Empirical

Evidence, 79 N.C.L. REV. 1383 (2001) ............ 12

Samuel Issacharoff, Polarized Voting and the

Political Process: The Transformation of Voting

. Rights Jurisprudence, 90 Mich. L. REV. 1833

SEE in's6 bidue co edeasacsel ecéqdesecdeet 11-12

Pamela S. Karlan, Loss and Redemption: Voting Rights

at the Turn of a Century, 50 VAND. L. REV. 291

Og rs ge a ek 1

Pamela S. Karlan & Daryl J. Levinson, Why Voting

Is Different, 84 CAL. L. REV. 1201 (1996) ... 20,21, 24

Vili

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

VOTING RIGHTS ACT: HEARINGS ON S. 53, S. 1761,

S. 1975, S. 1992 AND H.R. 3112 BEFORE THE

SUBCOMM. ON THE CONSTITUTION OF THE

SENATE COMM. ON THE JUDICIARY, 97” Cong.,

PE udaceedewesdtees veddevescesieds 2

]

Interest of Amicus Curiae’

The NAACP Legal Defense and Educational Fund, Inc.

(“LDF”) is a nonprofit corporation chartered by the Appellate

Division of the New York Supreme Court as a legal aid society.

The Legal Defense Fund’s first Director-Counsel was

Thurgood Marshall. Since its founding in 1939, LDF has been

committed to enforcing legal protections against racial

discrimination and to securing the constitutional and civil rights

of African Americans. See NAACP v. Button, 371 U.S. 415,

422 (1963) (describing LDF as a “‘firm’ . . . which has a

corporate reputation for expertness in presenting and arguing

the difficult questions of law that frequently arise in civil rights

litigation”).

LDF has an extensive history of participation in efforts to

eradicate barriers to the full political participation of African

Americans in and to eliminate racial discrimination from the

political process. LDF has represented parties or participated

as amicus curiae in numerous voting rights cases before this

Court and the United States Courts of Appeals. See, e.g., Ga.

v. Ashcroft, 539 U.S. 461 (2003); Bush v. Vera, 517 U.S. 952

(1996); Shaw v. Hunt, 517 U.S. 899 (1996); United States v.

Hays, 515 U.S. 737 (1995); League of United Latin American

Citizens v. Clements, 999 F.2d 831 (S® Cir. 1993) (en banc),

cert. denied, 510 U.S. 1071 (1994); Chisom v. Roemer, 501

U.S. 380 (1991); Houston Lawyers’ Ass'n v. Attorney General

of Texas, 501 U.S. 419 (1991); and Thornburg v. Gingles, 478

U.S. 30 (1986). In addition, LDF actively supported the

legislative reversal of the decision in City of Mobile v. Bolden,

446 U.S. 55 (1980), which was achieved through the 1982

"Letters of consent to the filing of this brief have been lodged

with the Clerk of this Court. No counsel for any party authored

this brief in whole or in part, and no person or entity, other than

amici, made any monetary contribution to its preparation.

2

amendments to Section 2 of the Voting Rights Act of 1965.

See VOTING RIGHTS ACT: HEARINGS ON S. 53,8. 1761,S. 1975,

S. 1992 AND H.R. 3112 BEFORE THE SUBCOMM. ON THE

CONSTITUTION OF THE SENATE COMM. ON THE JUDICIARY, 97"

Cong., 2d Sess. 1251-68 (1982) (statement of Julius L.

Chambers, President of the NAACP Legal Defense and

Educational Fund, Inc.).

Because of its longstanding commitment to the elimination

of racial discrimination in the political process and the

protection of the voting rights of African Americans, LDF has

an interest in these appeals, which present important issues

concerning the interpretation and application of Section 2 of the

Voting Rights Act of 1965, 42 U.S.C. § 1973.

Introduction and Summary of Argument

The four post-2000 Census Texas congressional

redistricting cases consolidated before this Court arise from a

set of facts that is at once common and extraordinary. The

underlying facts are common BécaliSt they detail a redistricting

story in which a partisan majority used its control of the process

to extract maximum political advantage. This is unremarkable.

Experience teaches that both the Democratic and Republican

parties aggressively pursue their partisan motives in

redistricting where they can contro] the process.

The story is extraordinary, however, because the naked

partisan objectives of the redistricting process at issue were laid

bare by the unusual timing of the line redrawing, and by the

means that the proponents employed to achieve their partisan

ends. A court-drawn and -approved congressional districting

plan fashioned after the 2000 Census, and described as tilting

in favor of the Republican party that controls Texas, was

deemed not to tilt far enough in an era when computer

3

innovations have enhanced the possibilities for highly effective

gerrymandering. Minority party Democratic legislators fled the

state they were elected to serve in an effort to avoid a vote on

and passage of the plan that was ultimately passed. Proponents

of the “re-redistricting” plan enlisted a federal agency to aid in

obtaining the return of the departed state legislators, and

longstanding procedural rules of the legislature were nearly

abrogated to facilitate passage of the partisan plan.

This set of underlying facts —- manifesting familiar

redistricting opportunism as well as extraordinary proceedings

and techniques — presents this Court for the second time in

as many years with the central question whether partisan

distortions of the redistricting process can rise to the level of

Constitutional injury.

The political aspects of the case have received considerable

attention, and any rule(s) that the Court may choose to fashion

in service of constitutional guarantees could provide important

guidance in establishing the outer bounds to which elected

officials may reach in their efforts to place their own, and their

parties’, interests above those contemplated by the public and

Constitutional purposes of redistricting.

Because the cases consolidated before this Court arose in

Texas, a state that reflects many of the prevailing

demographic patterns and population trends in the United

States, there is another — perhaps less discussed but no less

important — set of questions that run through the jurisdictional

statements. These are questions about minority voting rights

and the degree to which contemporary partisan redistricting

battles are at tension with well-established legal principles that

protect minority citizens’ access to the political process and

their right to elect candidates of their choice. Not only do

partisan manipulations raise questions about the limits of

4

legislative power exercised in defense of its own interests, but

they also threaten to trample principles of minority political

fairness elevated by the entire nation in the commands of the

14* and 15® Amendments, and embraced in bipartisan

Congressional votes of support for the Voting Rights Act on

five occasions. Through these votes, political partisans have

themselves recognized that our Constitution and history

demand that some rules enjoy a place of primacy in the political

process.

Indeed this case raises the specter of an even greater, if less

obvious, danger for minority voting rights: If this Court refrains

from announcing any limitation on partisan gerrymanders

regardless of their severity, and also permits partisan

explanations to trump racially disparate voting behavior so as

to insulate legislative enactments from judicial scrutiny, the

Voting Rights Act, and the minority political fairness principles

for which it stands, would become largely meaningless.

Accordingly, LDF submits this brief as amicus curiae to

address two important issues of interpretation of the Voting

Rights Act of 1965, as amended, and construed in the seminal

Section 2 case of Thornburg v. Gingles, 478 U.S. 30 (1986).

These issues, involving (a) the minority numerosity

requirement (Gingles’ first precondition), and (b) the legal

significance of partisan alignments along racial lines in

negating the significance of racially polarized voting (Gingles’

third precondition), were the second of the Questions Presented

in the jurisdictional statements in Nos. 05-296 and 05-204,

respectively.

First, LDF urges this Court to recognize that it is consistent

with the language, purposes and evolution of its own doctrine

under the Voting Rights Act for minority voters to assert legally

cognizable interests in opportunities to elect candidates of their

5

choice even in districts where those minorities are not

sufficiently concentrated to comprise a numerical majority.

However, in order for this principle to be both consistent with

the statutory purposes of Section 2, and to serve the screening

function for which the Gingles prerequisites were intended, it

must be properly limited to recognize only reliable coalition

districts that provide a discernible opportunity for the coalition

to elect and not improvidently extended in the Section 2

context to encompass necessarily amorphous influence

districts. If this Court agrees with our suggestion and modifies

the first Gingles prerequisite, the judgment below should be

vacated with instructions to reconsider the affected claims and

issues in light of the new standard.

Second, if this Court reaches the issue of the interplay

between partisan and racially polarized voting patterns under

the Gingles preconditions, it should find that considerations of

partisan polarization may not rebut, and thereby place beyond

judicial reach, a prima facie showing under the Gingles

preconditions but may be considered only under the totality of

the circumstances.

These legal questions are of considerable moment. More

than forty years after passage of the transformative Voting

Rights Act, the Court is presented in these appeals with an

opportunity to revisit its seminal Section 2 decision, as well

as to reconcile partisan redistricting issues, recently considered

in Vieth v. Jubelirer, 541 U.S. 267 (2004), that are bound up in,

but not fully coextensive with, the minority political fairness

principles to which Congress has consistently committed our

nation. That these issues are now intertwined is no reason to

abandon Constitutional and Congressional mandates. Indeed,

the political and minority voter protection issues have always

been intertwined.

ARGUMENT

Districts In Which Voters Of A Particular

Minority Group Do Not Constitute 50% Of

The Relevant Population, But Who Are Able

To Elect Candidates Of Their Choice In

Combination With Other Minority Voters,

Or With Reliable Crossover Votes From The

Population Majority, Meet The First Gingles

Precondition For A Viable Section 2 Claim

Jackson Appellants (plaintiffs below) urge the Court to

extend the protections of Section 2 of the Voting Rights Act to

districts in which a substantially large group of minority voters

— while short of comprising a mathematical majority of the

population — is nonetheless capable of nominating and

electing its candidate of choice. Before the District Court,

other plaintiffs requested recognition of a § 2 claim not only for

so-called “coalition” or “crossover districts,” but also for

“influence districts,” where minority voters, while unable to

elect their candidates of choice, exercise varying levels of

influence in the electoral process.’ Session v. Perry, 298 F.

?There has been some confusion among commentators

litigants, and courts — including the District Court below, see,

e.g., Session, 298 F. Supp. 2d at 482-83 (identifying various

proffered examples of influence and coalition districts) — over

what constitutes an “influence,” “coalition,” or “crossover”

district. For purposes of this brief, we consider an “influence

district” one “where minority voters may not be able to elect a

candidate of choice but can play a substantial, if not decisive, role

in the electoral process.” Ga. v. Ashcroft, 539 U.S. 461, 482

(2003). A “coalitional” or “crossover district” is one in which (as

the Court has described it), minority voters in a district — despite

7

Supp. 2d 451, 482-83 (E.D. Tex. 2004).

The District Court, following the Fifth Circuit’s strict “fifty

percent rule,” rejected these arguments. /d at 482-83 &

nn.111, 112 (citing Perez v. Pasadena Independent Sch. Dist.,

165 F.3d 368 (Sth Cir. 1999), cert. denied, 528 U.S. 1114

(2000); Valdespino v. Alamo Heights Ind. Sch. Dist., 168 F.3d

848 (Sth Cir. 1999), cert. denied, 528 U.S. 1114 (2000)). In so

doing, it declined the opportunity to decide whether any set of

circumstances might exist in which a group of minority voters

less than an absolute majority of the relevant population could

ever satisfy the first Gingles precondition. Jd. at 476.

This Court has yet to rule on the question. See, e.g.,

Johnson v. DeGrandy, 478 U.S. at 1008-09; Voinovich v.

Quilter, 507 U.S. 146, 154 (1993); Growe v. Emison, 507 U.S.

25, 41 (1993); Gingles, 478 U.S. at 47.12; see also Metts v.

Murphy, 363 F.3d 8, 11 (ist Cir. 2004) (en banc) (“[S]everal

Supreme Court opinions after Gingles have offered the

prospect, or at least clearly reserved the possibility, that

Gingles’ first precondition — that a racial minority must be

their not constituting a majority of the population — can form a

coalition with another minority group sufficient to elect their

candidate of choice, Johnson v. DeGrandy, 512 U.S. 997, 1020

(1994), or can demonstrate an ability to elect their candidate of

choice “when joined by predictably supportive nonminority

voters.” Ga. v. Ashcroft, 539 U.S. at 492 (Souter, J., dissenting)

(emphasis added).

*This was the lower court’s opinion supporting the judgment

that was vacated and remanded in Jackson v. Perry, 160 L. Ed. 2d

252 (2004); the issues addressed by amicus in this brief were

discussed by the court only in that opinion, and not in its June 9,

2005 remand opinion (reprinted at J.S. App. la-50a in No. 05-

204).

able to constitute a ‘majority’ in a single-member district —

could extend to a group that was a numerical minority but had

predictable cross-over support from other groups.”) (citing

cases).

LDF writes separately as an amicus to urge the Court to

interpret the first Gingles requirement, consistent with the text

and purpose of the Voting Rights Act, to include those districts

in which a minority group can demonstrate an “ability to elect”

— even if it does not comprise a mathematical majority of the

population. Such a limited extension of the first Gingles

precondition would demonstrate a recognition of the political

realities of the American electoral process and is fully

consistent with the evolution of the Court’s Section 2

jurisprudence. The Court should not, however, extend

coverage of Section 2 to include claims in which a minority

group alleges that it can exercise some amorphous degree of

“influence” over elections or governance, as doing so would

establish a new standard that is both unworkable and

ungrounded in either the statute or the relevant case law.

A. Recognizing “Crossover” or “Coalition” Districts

under Section 2 Is Consistent with the Statutory

Language, Structure and Intent, and also with

This Court’s Voting Rights Act Jurisprudence.

Because the language of Section 2 explicitly protects the

ability of minority voters to “elect representatives of their

choice,” 42 U.S.C. § 1973(b) (emphasis added), the focus of

the Section 2 inquiry at the precondition stage should be

whether the specific conditions in a jurisdiction permit the fact-

finder to conclude that a minority group in a given district does

in fact have a reliable opportunity to elect its candidates of

choice. See Gingles, 478 U.S. at 43-46 (describing legislative

history and purpose of the Act). The pertinent difference

9

between “coalition” or “crossover districts,” on the one hand,

and “influence districts,” on the other, is that the former

districts involve instances in which there is a cognizable

“ability to elect” claim.

The Court should not interpret the Gingles preconditions

so strictly as to frustrate this clear statutory purpose. The

Gingles test was fashioned in order to make sure that a

cognizable Section 2 claim (and remedy) exists, especially

given that the statute expressly disavows any guarantee of

proportional representation. Gingles, 478 U.S. at 50 & n.17

(purpose of first precondition designed so that Section 2 would

“only protect racial minority votes from diminution

proximately caused by the districting plan; it would not assure

racial minorities proportional representation.”) (emphasis in

origina!) (internal citations omitted). Thus, Gingles viewed the

first precondition as a means to ensure that courts would

consider Section 2 claims in jurisdictions where “minority

voters possess the potential to elect representatives in the

absence of the challenged structure or practice,” 478 U.S. at 50

(emphasis in original), and the precondition should be

understood to serve a functional — not inflexible — purpose.

Growe, 507 U.S. at 40 (“[T]he ‘geographically compact

majority’ and ‘minority political cohesion’ showings are

needed to establish that the minority has the potential to elect

_@ representative of its own choice in some single-member

district.”)

Nor is there a practical reason to limit the protections of

Section 2 to majority-minority communities. There is nothing

taltsmanic about a district with a (single or combined) minority

population greater than fifty percent. Both the Gingles

preconditions and Section 2 itself were designed to provide

practical measures for realizing the ability of minority voters to

10

elect candidates of choice.* The degree of racial polarization

will drive what level of minority population is necessary and

the analysis can vary even within a single state, or jurisdiction.

The Gingles Court itself recognized that some white

crossover voting may exist and should be considered in the

fact-intensive analysis of whether a Section 2 claim could be

established. 478 U.S. at 56 ( “And, in general, a white bloc

vote that normally will defeat the combined strength of

minority support plus white ‘crossover’ votes rises to the level

of legally significant white bloc voting. ... The amount of .

white bloc voting that can generally ‘minimize or cancel’

... black voters’ ability to elect representatives of their choice,

however, will vary from district to district according to a

number of factors.”) (emphasis added) (internal citations

omitted).

Similarly, several lower courts — including the Fifth

Circuit — have expressly recognized that minority coalitions

among groups that each may not meet the first Gingles

prerequisite can be considered together to satisfy its

requirement, at least if they can establish that voters of both

“Indeed, in the early years of Section 2 enforcement, courts

routinely required supermajorities to guarantee the minority

voters’ ability to elect. See, e.g., Ketchum v. Byrne, 740 F.2d

1398, 1413-17 (7 Cir. 1984) (collecting cases). Just as it is

possible that minority voters who constitute a bare majority of the

population a district may fail to demonstrate that they have the

ability to elect candidates of their choice, it is also theoretically

possible that minority voters who are /ess than a majority of a

district can make such a showing. See Gingles, 478 U.S. at 56

n.24 and accompanying text. Courts should be free to continue to

take into account the changing landscape of American politics

and the development of minority coalitions or the phenomenon of

limited white crossover voting where it exists.

ll

groups vote together cohesively. See, e.g., Campos v. City of

Baytown, Texas, 840 F.2d 1240, 1244-46 (5" Cir. 1988)

(affirming trial court finding of cohesion and applying

principle), cert. denied, 492 U.S. 905 (1989); League of United

Latin American Citizens v. Midland Ind. Sch. Dist., 812 F.2d

1494, 1500-02 (5 Cir.) (same), vacated and aff'd on other

grounds, 829 F.2d 546 (5" Cir. 1987); see also Concerned

Citizens v. Hardee County Bd., 906 F.2d 524, 526-27 (11" Cir.

1990) (recognizing principle but affirming trial court’s

determination that cohesion between groups not proved);

Brewer v. Ham, 876 F.2d 448, 453 (5" Cir. 1989) (same).

This Court has not decided the question. However, in Ga.

v. Ashcroft, all of the Justices recognized the relevance of

coalition and crossover districts in assessing whether

retrogression under Section 5 occurred in districts where

minority voters were provided an opportunity to elect their

candidates of choice under the benchmark plan. See 539 U.S.

at 480 (“[A] State may choose to create a greater number of

districts in which it is likely — although perhaps not quite as

likely as under the benchmark plan — that minority voters will

be able to elect candidates of their choice.”); id. at 492 (Souter,

J., dissenting) (“The prudential objective of § 5 is hardly

betrayed if a State can show that a new districting plan shifts

from supermajority districts, in which minorities can elect their

candidates of choice by their own voting power, to coalition

districts, in which minorities are in fact shown to have a similar

opportunity when joined by predictably supportive nonminority

voters.””) (emphasis added).

Although pervasive racially polarized voting patterns

continue to dominate the political landscape, see, e.g., Pamela

S. Karlan, Loss and Redemption: Voting Rights at the Turn of

a Century, 50 VAND. L. REV. 291 (1997); Samuel Issacharoff,

Polarized Voting and the Political Process: The

12

Transformation of Voting Rights Jurisprudence, 90 MICH. L.

REV. 1833 (1992), there are (and have long been) some

communities in which minority-preferred candidates enjoy

limited, reliable white crossover support or in which minority

voters have formed sufficiently large and dependably cohesive

coalitions with other racial or ethnic minorities to elect a

candidate of their choice. See, e.g., Bernard Grofman, Lisa

Handley, & David Lublin, Drawing Effective Minority

Districts: A Conceptual Framework and Some Empirical

Evidence, 79 N.C.L. REV. 1383, 1394-1423 (2001) (empirical

analyses of election results in certain communities where black

voters were able to elect candidates of choice despite not

comprising a majority of the districts’ respective populations).

In its rulings since Gingles, the Court has recognized the

phenomenon that there are some communities in which

coalitions are formed among minority groups or small, reliable

levels of crossover voting from white voters that provide

certain minorities, who themselves may not comprise a

majority of the voting population, with a reasonable

opportunity to elect their candidates of choice. See, e.g., Ga. v.

Ashcroft, 539 U.S. at 480; DeGrandy, 512 U.S. at 1023.°

*It bears emphasis that whether a court will find reliable,

predictable majority crossover voting of sufficient size to allow

the election of minority voters’ candidates of choice will depend

on the nature and extent of the proof offered by Section 2

claimants. The inquiry is similar in nature to that described by

Justice Brennan in Gingles with respect to determining whether

white bloc voting would “generally ‘minimize or cancel,’ . . .

black voters’ ability to elect representatives of their choice,” and

“will vary from district to district according to a number of

factors.” See Gingles, 478 U.S. at 56, text at n.24 (setting out

non-exclusive list of potentially relevant factors).

13

To be sure, it will continue to be true that for most Section

2 claims, having a majority of minority voters will be necessary

to demonstrate an “ability to elect.” But, the existence of

crossover and coalition districts where the opportunity to elect

candidates of choice is available to minority voters should be

embraced and protected by the Court’ s Section 2 jurisprudence,

not held in check based on an unnecessarily restrictive

interpretation of its judicially-crafted test. DeGrandy, 512 U.S.

at 1020 (describing the Voting Rights Act as “a statute meant

to hasten the waning of racism in American politics”).

Requiring minority voters to show that they are an absolute

majority ignores the practical reality that, in some jurisdictions,

they are capable of electing preferred candidates without such

numbers. It also places an artificial limitation on the

effectiveness of Section 2 by failing to allow it to account for

shifts in the political landscape. See Voinovich, 507 U.S. at 158

(“[T]he Gingles factors cannot be applied mechanically without

regard to the nature of the claim.”).

Indeed, in DeGrandy, this Court expressly rejected the

State’s safe harbor argument on the grounds that relying too

heavily on majority-minority districts as the only way in which

“obscure the fact that there are communities in which minority

citizens are able to form coalitions with voters from other racial

and ethnic groups, having no need to be a majority within a

single district in order to elect candidates of their choice.” 512

U.S. at 1020.

14

B. Section 2 Claims Involving “Coalition” or

“Crossover” Districts Are Governed by

Manageable Standards Already Familiar to

Federal Courts from Past Section 2 Litigation.

Relaxing the first Gingles precondition of the Section 2

inquiry to permit a more exacting focus on minority voters’

“ability to elect” in a coalition or crossover district only brings

it closer in line with the text of the statute, which codified the

“totality of the circumstances” analysis from White v. Regester,

412 U.S. 755 (1973), and the intent of Congress, which was to

take account of the contemporary, practical realities of the

political process. See Gingles, 478 U.S. at 45 (noting that the

Senate Committee recognized that “the question whether the

political processes are ‘equally open’ depends on a searching

practical evaluation of the ‘past and present reality,’ . . . and on

a ‘functional’ view of the political process.”) (some internal

quotations and citations omitted). See also Ga. v. Ashcroft, 539

U.S. at 480 (“The ability of minority voters to elect a candidate

of their choice is important but often complex in practice to

determine.”). |

This more practical application of the first Gingles

precondition recognizing districts that may not have a

numerical majority of minority voters would not open the door

to claims that Congress never intended to protect in Section 2,

since proof of the other two Gingles preconditions would

remain necessary. See Ga. v. Ashcroft, 539 U:S. at 485 (“And

it is of course true that evidence of racial polarization is one of

many factors relevant in assessing whether a minority group is

able to elect a candidate of choice or to exert a significant

influence in a particular district.”). The other two Gingles

prongs, along with other “totality of the circumstances”

considerations, will assist courts in determining if a given

i)

district provides minority voters with an “ability to elect” as

opposed to merely the “ability to influence.”

Indeed, the determination of an “ability to elect” in

coalition or crossover districts is one that even the dissenting

Justices in Ga. v. Ashcroft acknowledge is concrete and

demonstrable, 539 U.S. at 492 (Souter, J., dissenting), not an

abstract hope too elusive to for courts to establish limiting

principles, as is the case with the recognition of influence

districts. Jd at 496-97 (but noting difficulties of quantifying

“influence”).

While .it is true that the Court’s recent decision in Ga. v.

Ashcroft held that influence districts could be considered in a

§ 5 retrogression analysis, the recognition of influence districts

in that context should not extend’to Section 2. Ga. v. Ashcroft,

539 U.S. at 478 (“We have, however, ‘consistently understood’

§ 2 to “combat different evils and, accordingly, to impose very

different duties upon the States.”) (quoting Reno v. Bossier

Parish Sch. Bd., 520 U.S. 471, 477 (1997)). See also Holder

v. Hall, 512 U.S. 874, 883 (1994) (plurality opinion) (Sections

2 and 5 are “different in structure, purpose, and application”).

Indeed, as the Court in Ga. v. Ashcroft noted, “[i}n contrast to

§ 5’s retrogression standard, the ‘essence’ of a § 2 vote dilution

claim is that ‘a certain electoral law, practice, or structure .. .

‘For example, a minority group could require so many

crossover votes that it does not truly possess the capacity to

choose its own candidate, but only to influence electoral contests

between two or more white-preferred candidates. Similarly, a

minority group that is too small and that thus requires too high a

level of white crossover support will be unlikely to satisfy the

third Gingles precondition: that white regularly vote as a bloc

against the minority preferred candidate. A careful analysis of

election data, therefore, will shed light on which role minority

voters actually play in the political process.

16

cause[s] an inequality in the opportunities enjoyed by black [or

other minority voters] and white voters fo elect their preferred

representatives.’” Id. (quoting Gingles, 478 U.S. at 47)

(emphasis added).

Just as the text of Section 2 provides the basis for a more

flexible interpretation of the first Gingles precondition,

therefore, it also provides a built-in limiting principle: the

requirement that minorities in an existing or proposed district

demonstrate an ability to elect “representatives of their choice.”

42 U.S.C. § 1973(b). Whereas the parameters of a Section 5

retrogression determination find their origins in this Court’s

jurisprudence, see Beer v. United States, 423 U.S. 130, 141

(1976), the statutory language about the minority group’s

“ability to elect” is the touchstone of any Section 2 analysis.

The court below erred in ending its Section 2 analysis

when it found that African-American voters in District 24 were

unable to meet the majority-minority requirement of the first

Gingles precondition. Sessions, 298 F. Supp. 2d at 483 (“A

minority group lacking a majority cannot elect its candidate of

choice, and denying the group a separate district cannot be a

denial of any opportunity protected by the [Voting Rights]

Act.”). Its singular focus on the numerical aspect of the

Gingles test was unwarranted and turned its attention away

from the relevant “ability to elect” question.

This Court should clarify its ruling in Gingles, remand the

case to the District Court to determine, under the totality of the

cucumstances, whether District 24 provides minority voters an

opportunity to elect their candidate of choice. Among other

cireumstances, the lower court should seek to determine the

degree of racial polarized voting with special focus given to

whether the district provides the minority voters with the

opportunity \to elect candidates of choice.

17

Il.

Whatever Limitations, If Any, The Court

Places Upon Political Gerrymanders, It Is

Essential That They, Like Other

Redistrictings, Remain Subject To

Meaningful Scrutiny Under Section 2

In the last two decades, developments in computer

technology and software programming have made possible

increasingly sophisticated and precise shaping of districts for

political, among other, ends, and this Court’s attention has been

correspondingly drawn to the question whether the Constitution

places any limits upon partisan gerrymandering. These appeals

grow out of cases filed to challenge one such redistricting.

Some plaintiffs in those cases alleged that the 2003

districting plan at issue, even if it were drawn for partisan ends,

also infringed upon minority voting rights protections afforded

by Section 2 of the Voting Rights Act. The court below

rejected those claims on the ground, inter alia, that their

proponents could not satisfy the first Gingles precondition. See

supra § 1, However, the court also indicated in its decision that

even were this not its view, it would have rejected the claims

by applying a doctrine developed by the Fifth Circuit more than

a dozen years ago, which holds that neither the second nor the

third Gingles preconditions (cohesion and racially polarized

voting) can be established where party affiliation is also

characterized by substantial racial differences. Session, 298 F.

Supp. 2d at 478 n.88.

Such an approach would effectively eliminate the

application of Section 2 to redistricting plans in areas where

political party loyalties have split along racial or ethnic lines,

which has become common in our nation at thie point in its

18

‘history. That result is insupportable as a matter of the statutory

text or Congressional purposes underlying enactment and

amendment of Section 2 of the Voting Rights Act. It would be

especially unfortunate if this Court were to sanction it, directly

or implicitly. Rather, the Court should make clear in its

decision on these appeals that the Fifth Circuit’s approach is

inconsistent with the Act.

A. The Doctrine that Racial Cleavages in Political

Party Affiliation Negate the Significance Under

Section 2 of Racial Voting Patterns Misconstrues

this Court’s Section 2 Jurisprudence.

For twenty years, racially polarized voting patterns have

been at the core of this Court’s Voting Rights Act

jurisprudence. See, e.g., Gingles, 478 U.S. 30. The analysis of

racially polarized voting is a very apt analytical tool because it

aids in identifying the circumstances in which private behavior

combines with structural electoral arrangements to impede

equal opportunities for minorities to elect candidates of choice

and participate in the political process. See id. at 51. Under

Section 2, two of the three Gingles preconditions involve

variants of bloc voting. The standard is in many respects self-

regulating. If a substantial degree of polarization is present,

assuming other threshold conditions are met, the analysis

proceeds, whereas a failure to show legally significant

polarization ends the inquiry.

Since this Court decided Gingles, the preconditions have

played an essential gate-keeping function for courts by allowing

them to approach Section 2 claims with a discernible standard.

As the designation suggests, meeting the preconditions does not

suffice for purposes of the ultimate liability determination

under Section 2 — that determination is made only under the

totality of the circumstances, including consideration of the

19

“Senate factors.” Jd. at 36-37. Accordingly, in the area of

minority voting rights protection, Congress has identified a

problem, provided a remedy, and this Court has supplied, and

at times refined, a judicially manageable standard.

Racially polarized voting patterns are the touchstone of

Section 2 claims. In Gingles, the Court addressed the question

whether the Section 2 dilution inquiry concerns itself

exclusively with the existence of polarized voving patterns or

also with the reasons that such patterns occurred. Writing for

the Court, Justice Brennan explained that:

It is the difference between the choices made between

blacks and whites — not the reasons for that difference —

that results in blacks having less opportunity than whites

to elect preferred representatives. Consequently, we

conclude that under the “results test” of Section 2, only the

correlation between the race of the voter and selection of

certain candidates, not the causes of the correlation

matters.

~

Id. at 64 (emphasis in original).

All Justices accepted the principle announced by this

portion of Justice Brennan’s plurality opinion, at least insofar

as it applied to the preconditions to bringing a Section 2 claim.

See Gingles, 478 U.S. at 100 (O’Connor, J., joined by Burger,

C.J., Powell and Rehnquist, JJ., concurring in the judgment):

Insofar as statistical evidence of divergent racial voting

patterns is admitted solely to establish that the minority

group is politically cohesive and to assess its prospects for

electoral success, | agree that defendanis cannot rebut this

showing by offering evidence that the divergent racial

voting patterns may be explained in part by causes other

20

than race, such as the undezlying divergence in the

interests of minority and white voters. I do not agree,

however, that such evidence can never affect the overall

vote dilution inquiry.

(Justice White did not join this part of Justice Brennan’s

opinion only insofar as it would not have permitted

consideration of the race of the candidate, as well as the race of

the voter, in the “totality of the circumstances” analysis.

Gingles, 478 U.S. at 83.)

Notwithstanding this functional agreement that the Gingles

preconditions do not end the dilution analysis but rather operate

to narrow the number of cases that require further Section 2

consideration under the totality of the circumstances, the Fifth

Circuit has adopted an inconsistent rule which permits the very

type of “rebuttal evidence” disfavored by the Court. See

League of Latin American Citizens v. Clements, 999 F 2d 831,

850, 858-59 (5 Cir. 1993) (en banc) (LULAC), cert. denied,

510 U.S. 1071 (1994). Although the LULAC court insisted on

an evaluation of the role of partisan causation as an explanation

for polarized voting patterns with all of the attendant problems

of that approach, see, e.g., Bernard Grofman & Lisa Handley,

Issues in Voting Rights, 65 Miss. L.J. 205, 222-34 (1995);

Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different,

84 CaL. L. Rev. 1201, 1223-27 (1996), it did not clearly

explain how its newly announced rule of Section 2 analysis

would operate. LULAC, 999 F.2d at 860 (“. . . we need not

resolve the debate today. Whether or not the burden of the

plaintiffs to prove bloc voting includes the burden to explain

[that is, to negate the role of] partisan influence, the result is the

same.”’)

The LULAC rule has both doctrinal and evidentiary

shortcomings. As a legal matter, it introduces partisan

21

intent/causation into the proof requirements of a statute that

was expressly amended by Congress to establish a results test

in order to make proof of intent unnecessary. See Gingles, 478

U.S. at 35-37 (summarizing history). As an evidentiary and

empirical matter the problem is two-fold:

First, there is sufficient correlation between partisanship

and racial bloc voting patterns in so many parts of the country

that the two are at best complicated, or in some cases

impossible to disentangle. See, e.g., Grofman & Handley, 65

Miss. L.J. at 229 (“. . . separating out racial from partisan

concerns will not be easy, and forcing plaintiffs to try to do so

in order to succeed in proving a Section 2 violation in situations

involving partisan elections will make it much harder for

plaintiffs to prevail in such challenges, even in situations where

minority exclusion [is] total”); Karlan & Levinson, 84 CAL. L.

REV. at 1223-24 (noting shortcomings of statistical models that

attempt to disaggregate race and partisanship); Richard L.

Engstrom, The Reincarnation of the Intent Standard: Federal

Judges and At-Large Election Cases, 28 How. L.J. 495, 506

(1985) (criticizing attempts by courts to “cleanse” racially

divided voting patterns of their racial content through

multivariate analysis); cf Vieth v. Jubelirer, 541 U.S. at 287

(Scalia, J.) (“But a person’s politics is rarely as readily

discernible — and never as permanently discernible as a

person’s race. Political affiliation is not an immutable

characteristic, but may shift from one election to the next; and

even within a given election, not all voters follow the party

line.”).

Second, the introduction of partisan causation in the initial

precondition stage of the Gingles analysis transforms a

judicially manageable standard for political fairness to minority

voters into a judicially created barrier to the congressionally

authorized method of relief. '

22

In a footnote, the court below appears to extend the Fifth

Circuit’s polarized voting causation rule. Session, 298 F. Supp.

2d at 478 n.88. Contrary to Gingles and its progeny, the court

announces that its newly devised test requires that at the

Gingles preconditions stage, plaintiffs bear the burden of

disproving what amounts to a presumption of partisan

causation. Jd.’ Placing this affirmative burden on plaintiffs at

the threshold stage transforms partisanship from one factor

among others to be taken into account in the “totality of the

circumstances” anal-is into an outcome-determinative issue,

despite the facts that: (a) it is not mentioned in the statute; and,

(b) all members of the Court in Gingles accepted the

proposition that the issue was relevant only at the final

“totality” stage of the case, except for three Justices who would

have excluded its consideration even at that stage.

The Fifth Circuit’s particularly muscular version of

partisan polarization presumption is also anomalous among

lower federal courts. Although several Circuits recognize that

it is proper to consider explanations for voting patterns under

"Cf. Johnson v. Cal., 162 L. Ed. 2d 129, 139 (2005) (“[A]

defendant satisfies the requirements of Batson’s first step by

producing evidence sufficient to permit the trial judge to draw an

inference that discrimination has occurred. Respondent, however,

. .. contends [that] a Batson claim must prove the ultimate facts

by a preponderance of the evidence in the prima facie case .. . .

Respondent’s argument is misguided. . . . ‘It is not until the third

step that the persuasiveness of the justification becomes relevant

— the step in which the trial court determines whether the

opponent of the strike has carried his burden of proving

purposeful discrimination.’ Purkett [v. Elem, 514 U.S. 765] at

768.”) Since Section 2 was amended in 1982 to eliminate any

requirement of proving intent, placing the burden on plaintiffs to

disprove a presumed nondiscriminatory explanation for racially

polarized voting patterns is even more insupportable.

23

the totality of the circumstances, consistent with Justice

O’Connor’s opinion in Gingles, the Fifth Circuit appears to

stand alone in its requirement that partisan causation be

presumed to explain racially polarized in voting patterns. See

e.g., United States v. Charleston County, 365 F.3d 341, 348-49

(4" Cir. 2004); Goosby v. Town Bd. of Hempstead, 180 F.3d

476, 493 (2d Cir. 1999); Uno v. City of Holyoke, 72 F.3d 973,

983 (1 Cir. 1995).

B. The Fifth Circuit’s Partisanship Exception to the

Second and Third Gingles Preconditions Ignores

the Extent to which Race Has Become Implicated

in Partisan Alignment.

Apart from the doctrinal and evidentiary problems with the

Session variant of the partisan polarization presumption in the

Section 2 analysis, the rule ignores the extent to which today’s

political parties have been shaped by express or implicit racial

considerations and appeals. Faced with an entrenched and

well-documented history of discrimination in voting with

discernible present day effects, Congress has determined on

several occasions that the best way to enhance minority

political inclusion is to take account of and try to ameliorate

racial cleavages rather than seeking to explain them away.

The contemporary party alignments happened over time,

but they cannot be said to be sufficiently different in nature

from the trend that began prior to the passage of the Voting

Rights Act to justify a prophylactic rule that places them

beyond the reach of courts. See Grofman & Handley, 65 Miss.

L.J. at 229 (explaining that Blacks have been overwhelmingly

Democratic in their party affiliation since 1964, and whites

have become increasingly Republican).* The contemporary

‘In Gingles, 478 U.S. at 40, this Court acknowledged the

record evidence of the use of race to divide the electorate for

24

partisan trends emerged in a context that scholars and political

operatives both recognize. See Karlan & Levinson, 84 CAL. L.

REV. at 1223 (citing Thomas B. Edsall & Mary D. Edsall,

CHAIN REACTION; THE IMPACT OF RACE RIGHTS, AND TAXES

ON AMERICAN POLITICS, at 151 (1991) (arguing that racial

attitudes after the 1960s “became a central characteristic of

both ideology and party identification, integral to voters’

choices between Democrats and Republicans”).

Indeed, even political partisans, at times, express a

willingness to acknowledge the role that race has played in the

prevailing political alignment. As the Washington Post

recently reported, in a prepared speech delivered to the NAACP

during its national conference in July of 2005, Republican

National Committee Chairman, Ken Mehlman, apologized for

“the southern strategy,” which the paper described as

“Republican efforts to use race as a wedge issue on matters

such as desegregation and busing — to appeal to white

southern voters.” Mike Allen, RNC Chief to Say It Was

‘Wrong’ to Exploit Racial Conflict for Votes, WASHINGTON

Post, July 14 2005, at A4. “By the ’70s and into the 80s and

nearly a century, continuing beyond the date of the last Voting

Rights Act renewal:

[T)he [district] court found that white candidates in North

Carolina have encouraged voting along color lines by

appealing to racial prejudice. It noted that the record is

replete with specific examples of racial appeals, ranging in

style from overt and blatant to subtle and furtive, and in date

from the 1890’s to the 1984 campaign for a seat in the

United States Senate. The court determined that the use of

racial appeals in political campaigns in North Carolina

persists to the present day and that its current effect is to

lessen to some degree the opportunity of black citizens to

participate effectively in the political processes and to elect

candidates of their choice.

25

90s, the Democratic Party solidified its gains in the African

American community, and we Republicans did not effectively

reach out .... Some Republicans gave up on winning the

African American vote, looking the other way or trying to

benefit politically from racial polarization. | am here today as

the Republican Chairman to tell you we were wrong.” /d.

Nor is the.history of the Democratic Party without

substantial racial strife. See Mary Frances Berry & John W.

Blassingame, LONG MEMURY; THE BLACK EXPERIENCE IN

AMERICA 385 (1982) (detailing the exclusion of the integrated

Mississippi Freedom Democratic Party from the party’s

national convention in 1964); Paul Frymer, UNEASY

ALLIANCES; RACE AND PARTY COMPETITION IN AMERICA 3-7

(1999) (detailing the neglect of African-American interests by

the modern Democratic party). Indeed, Frymer observes more

broadly that “[a}t most moments in American history, the desire

of political parties to seek national office has meant

marginalization for African Americans .... We are... one of

few democratic nations where party leaders have an incentive

to appeal almost exclusively to the majority group.” /d. at 6.

In light of this history, whether desirable or not, it seems

particularly incongruous for_a court to begin its analysis of a

congressionally mandated minority voting protection and

political fairness measure with the presumption that racial

patterns of partisan affiliation negate the significance of

persistent racial polarization at the ballot box. A rule whose

expansion has the potential to allow political parties to “benefit

politically from racial polarization” rather than ameliorating it

is unwarranted.

26

C. Whether or Not It Holds that There Are

Constitutional Limits to Partisan Gerrymandering

in the Redistricting Process, the Court Should

Explicitly Disapprove the Fifth Circuit’s Unique

Partisanship Exception to Section 2.

For the reasons we have described above, politics in the

United States is now substantially intertwined with race and

ethnicity, and correspondingly, partisan gerrymandering may

dramatically impact minority voting strength, as the highly

partisan redistricting plan at issue in these appeals

demonstrates. With support from Members of both major

political parties, Congress has exercised its constitutional

authority to place minority voting rights above partisan political

interests through the passage and renewal of the Voting Rights

Act.’

If this court allows the continued application of a rule that

racial or ethnic polarization in partisan alignment negates the

existence of the Gingles preconditions of cohesive minority

voting and racially polarized voting, it will place minority

voters beyond the reach of Section 2 protections. This result is

contrary to the language and purposes of the Voting Rights Act

and this Court should expressly disapprove it in these appeals,

whether or not it fashions limitations on partisan gerrymanders.

The need for the Court explicitly to address the LULAC

rule is especially critical if the result of its renewed

deliberations on partisan gerrymandering places no substantial

limitations upon that device, as party organizations can be

°Cf. Vieth, 541 U.S. at 275 (discussing Congress’ authority

over Congressional districting pursuant to Art. I, Sec. 4 of the

Constitution and noting the failure to exercise that authority in

recent history to limit partisan gerrymandering).

27

expected to maximize political advantage in this fashion to the

greatest extent allowable by the law.

CONCLUSION

For the foregoing reasons, amicus curiae respectfully

suggests that the judgment below should be vacated and the

case remanded for reconsideration in light of the clarified

Gingles standards urged in this brief.

; Respectfully submitted,

THEODORE M. SHAW

Director-Counsel

JACQUELINE A. BERRIEN

*NORMAN J. CHACHKIN

DEBO P. ADEGBILE

CHINH Q. LE

JENIGH J. GARRETT

NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.

99 Hudson Street, 16" Floor

New York, NY 10013

(212) 965-2200

*Counsel of Record

Attorneys for Amicus Curiae

Dated: January 10, 2006