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

wa

Nos. 05-204, 05-254, 05-276 and

SS ee. meee

IN THE

Supreme Court of the Anited States

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ef al.,

Appellants,

Vv.

RICK PERRY, GOVERNOR OF TEXAS, ef al., Appellees.

TRAVIS COUNTY, TEXAS, et al., Appellants,

V.

RICK PERRY, GOVERNOR OF TEXAS, ef al., Appellees.

EDDIE JACKSON, ef al., Appellants,

V.

RICK PERRY, GOVERNOR OF TEXAS, et al. , Appellees.

GI FORUM OF TEXAS, et al., Appellants,

Vv.

RICK PERRY, GOVERNOR OF TEXAS, ef a/., Appellees.

On Appeal from the United States

District Court for the Eastern District of Texas

BRIEF OF THE REPUBLICAN NATIONAL

COMMITTEE AS AMICUS CURIAE

SUPPORTING APPELLEES

THOMAS J. JOSEFIAK

Counsel of Record

SEAN CAIRNCROSS

*, REPUBLICAN NATIONAL

COMMITTEE

310 First Street, S.E.

Washington, D.C. 20003

(202) 863-8500

February 1, 2006 Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

Re Oe Fear CD “bicaiitiidbcsticticiintninisenciicieintninaiiitii il

INTEREST OF THE AMICUS CURIAE ...........:00:0ee0e00 bis 2

SUMMARY OF ARGUMENT ..............cc0:cessssesesseeesssseesees I

TIITTTS scivciscisibcsiietinnccianssitsistichiniiiplinspsailliobtinsnistcsiantcietlianctiinien 2

I. THE TEXAS 2003 LEGISLATIVELY ENACTED

CONGRESSIONAL MAP DOES NOT VIOLATE

THE FOURTEENTH AMENDMENT'S EQUAL

PPCM CULES GC AUEIED ccicrubticinnisiniinmsenstinensineltdatsntes 2

A. The Texas Map Does Not Meet the Standard Set

Forth By the Bandemer Plurality .................::..s0000 3

B. The Texas Map Survives Any Cognizable

Standard Of Vote Dilution .......00..ccccosssecssecsessosecseeses 8

1. The Vieth Plaintiffs’ Standard ..................0+ 13

2. The Vieth Dissenters’ Standards ................... 14

ll. THE VOTING RIGHTS ACT OF 1965 IS A

STATUTORY SHIELD TO PROTECT MINORITY

POPULATIONS, NOT A PARTISAN SWORD ........ 16

COCR IOT cscecentenscevesentechisinattinesinnieniinientridinnettanieneesees 22

TABLE OF AUTHORITIES

Page(s)

CASES:

Badham vy. Eu, 694 F. Supp. 664 (N.D. Cal. 1988) ........ 5,12

Baird v. Consol. City of Indianapolis, 976 F.2d 357 (7th

eee, RUINED duiiebisiialsnsninittiaiasidiaitlascidiniadiaddeadaceiinaiaieiats 17-18

Ne FOP, SET UB. FES CIGI OD Sineccciesecetninecevsesvncrecse 4,15

Colegrove v. Green, 328 U.S. 549 (1946) ......ccccecececseeeseeees 8

* Davis v. Bandemer, 478 U.S. 109 (1986) ...........000.. passim

Hall v. Virginia, 276 F. Supp. 2d 528 (E.D. Va. 2003),

aff'd 385 F.3d 421 (4th Cir. 2004) oo... ceeeeseesees 17

Henderson v. Perry, 399 F. Supp. 2d 756 (E.D. Tex.

SUUTIE -culciicnbeiiipanipiniecasiiadudpnaidapedaicinsiinmndiciictdniinel 7, 8,9, 11

Johnson v. De Grandy, 512 U.S. 997 (1994) ............ 9-10, 18

Johnson-Lee v. City of Minneapolis, 2004 WL 2212044

ne Caen Wha ee 4

Lewis v. Alamance County, 99 F.3d 600 (4th Cir. 1996) ... 17

Nixon v. Kent County, 76 F.3d 1381 (6th Cir. 1996) ......... 17

Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992) ........... 5,8

Quilter v. Voinovich, 981 F. Supp. 1032 (N.D.Ohio 1997),

Fy Fae as Fe CUD cttinivninticcitiiissnidihiampmcnie 17

Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y.

TUTE sencisicchinatttasnninapiersitimmindaduicauatiinenenaanateaiibaciainied 17

Shaw v. Reno, 509 U.S. 630 (1993) .......cc.cccccsscerereceeeeseees 14

Thornburg v. Gingles, 478 U.S. 30 (1986) .............. 2, 16, 17

tii

Table of Authorities (continued)

Page(s)

Uno v. Holyoke, 72 F.3d 973 (ist Cir. 1995)... ceseeceeeees 17

*Vieth v. Jubelirer, 541 U.S. 267 (2004) .00....e eee. passim

Whitcomb v. Chavis, 403 U.S. 124 (1971) ...ccccccceccecseeeeeeeee 9

STATUTES:

Voting Rights Act of 1965, 42 U.S.C. § 1973 (§ 2) .......... 16

LEGISLATIVE MATERIALS:

CLERK OF THE U.S. HOUSE, REPORT ON STATISTICS OF

THE PRESIDENTIAL AND CONGRESSIONAL ELECTION

OF NOVEMBER 2, 2004 (2005) available at

http://clerk.house.gov/members/electionInfo/2004

election.pdf (last visited Jan. 27, 2006) ...........:.ccceesee 6

Foie DU. GU. DESERT, ME BW CEP) .<cccccsccscssccenccovence-ceseonge 20

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

RELATED TO THE RIGHT TO VOTE, 89th Cong. (1st

a ED cciiiienicidcadambeililteitbastiiaiasinniisadeintbatiinsinpiatenntntoanineen 19

S. Rep. No. 417, 97th Cong. (2d Sess. 1982), reprinted in

Fh SR Eo aE Care ere 20, 21

MISCELLANEOUS SOURCES:

MICHAEL BARONE, THE ALMANAC OF AMERICAN

PD PI ciiicnissctdnbatesitiesnendiinticinsinaintiedinnttn 10, 16

Brief of Amicus Curiae Republican National Committee,

Davis v. Bandemer, 478 U.S. 109 (1986) .........cccccccesee. 3

iv

Table of Authorities (continued)

Page(s)

Bureau of Commissions, Elections and Legislation,

Pennsylvania Department of State, 2004 General

Election Returns, available at

http://web.dos.state.pa.us/cgi-

bin/ElectionResults/elec_archive.cgi?which=Archive

OE CEE FI: Ais SE iecncencccociiiniphctninsieiindiatbinass 10

Michael A. Carvin and Louis K. Fisher, A Legislative

Task: Why Four Types Of Redistricting Challenges

Are Not, or Should Not Be, Recognized by Courts, 4

ELECTION LJ. 2, 12-27 (2005) ..cccrcsassosesscccecscsevesesssese 18

April Castro, Texas Democrats Hopeful Despite Low

Point, THE ASSOCIATED PRESS, July 30, 2004 .......... 13

Chris Elliot, A Message from TCDP Chair Chris Elliot,

Travis County Democratic Party Press Release, Nov.

DEE svitsaitininanineneimnapitlenapiieeiaiiainmiaian 13

Galveston County Event Flyer, available at

http://www.galvestoncountydemocraticparty.com/

Special/TTB/index.htm (last visited Jan. 30, 2006) ... 12

BYRON C. HULSEY, EVERETT DIRKSEN AND His

PRESIDENTS: HOW A SENATE GIANT SHAPED

AMERICAN POLITICS 210-11 (Univ. Press of Kansas

ROOD) cccrememtmmastenemencnensenenaintinttin 21, 22

NEIL MACNEIL, DIRKSEN: PORTRAIT OF A PUBLIC MAN

4 (The World Pub, Co. 1970) .........csssssssesseseerereeensees 21

Texas Democrats To Meet On The Isiand, THE [Galveston

County, TX] DAILY NEws, Dec. 28, 2005 ............ 12-13

* Authorities principally relied upon are denoted by an asterisk

(“*), P

INTEREST OF THE AMICUS CURIAE

Amicus Republican National Committee (“RNC”) is an

unincorporated association that represents the National

Republican Party — including Republican congressmen and

women, state legislators, and registered voters — and its

interests are directly affected by the redistricting process in all

fifty states, including Texas.' The RNC seeks fair redistricting

procedures nationwide, such as those used by the Texas

legislature in drawing the Texas 2003 legislatively enacted

congressional map, Plan 1374C (the “Texas Map”), because

such procedures protect against egregious partisan

gerrymandering that dilutes opportunities for Republican

congressional and state legislative candidates to win elections,

and denies Republican voters their rights to full representation

and to full participation in the political process.

SUMMARY OF ARGUMENT

1. Ifapolitical party has geographically identifiable and

stable demographic voting segments, sophisticated technology

makes it possible to draw a congressional map that locks that

party into winning a majority of the delegation despite losing

the popular vote. Such a partisan gerrymander violates the

Fourteenth Amendment’s equal protection clause. The Texas

Map does not constitute such a political gerrymander, and it

does not violate equal protection. This Court’s political

gerrymandering jurisprudence, beginning with Davis v. -

Bandemer and continuing through Vieth v. Jubelirer, makes

clear that the Texas Map is not constitutionally deficient The

Texas Map survives scrutiny under the Court’s plurality

standard in Bandemer; indeed, the Texas Map survives scrutiny

under any cognizable standard of vote dilution. On the contrary,

' The parties have consented to the filing of this brief. Their letters are

on file with the Clerk of the Court. Pursuant to Rule 37.6, amicus states that

no counsel for any party has authored this brief in whole or in part, and no

person or entity other than amicus made a financial contribution to the

preparation or submission of this brief.

2

the legislatively drawn Texas Map more accurately translates

the Texas vote into Congressional representation.

2. Appellants’ argument with respect to the Voting

Rights Act amounts to interest group politics, which Justice

White made clear in his Thornburg v. Gingles concurrence

should play no part in the Act. The Voting Rights Act of 1965

was a legislative response to the violence that erupted in Selma,

Alabama, when African-Americans simply tried to register to

vote. The legislative record makes clear that legislators from

both parties supported the Voting Rights Act’s initial passage

and each of its three following renewals as a means to tear

down historical impediments to political participation that were

(and are) targeted at or effecting minority populations — in

particular, policies and programs designed to, or that did, stop

African-Americans from voting. Based upon the Act’s

language, case law, the legislative record, and the historically

clear and strong support of the Act by a majority of Republican

congressmen and the Republican Party, it defies logic to argue

that the Act was intended to favor one political party over

another.

ARGUMENT

I. THE TEXAS 2003 LEGISLATIVELY ENACTED

CONGRESSIONAL MAP DOES NOT VIOLATE

THE FOURTEENTH AMENDMENT’S EQUAL

PROTECTION CLAUSE.

Partisan gerrymandering removes Control of legislative

bodies from the hands of the electorate. By definition, partisan

gerrymandering accords different weight to different votes on

the basis of political party. A party with geographically

identifiable and stable demographic voting segments can

combine with clever cartographers to create a map that

institutionalizes single-party domination over a _ state’s

congressional delegation against popular will. Such partisan

3

gerrymandering dilutes the votes of one (or more) party’s

voters in violation of the Equal Protection Clause of the

Fourteenth Amendment. The RNC has consistently articulated

this concern and a plurality of this Court has recognized the

potential for such a violation since Davis v. Bandemer.’ 478

U.S. 109 (1986); Vieth v. Jubelirer, 541 U.S. 267, 292 (2004)

(“the issue we have discussed is not whether severe partisan

gerrymanders violate the Constitution, but whether it is for the

courts to say when a violation has occurred, and to design a

remedy”); see also Brief of Amicus Curiae Republican

National Committee, Bandemer, 478 U.S. 109 (1986). The

RNC’s position on partisan gerrymandering remains

unchanged.’ While no single standard for determining an

unconstitutional political gerrymander has emerged, it is clear

that the Texas Map is not an unconstitutional political

gerrymander under any standard.

A. The Texas Map Does Not Meet the Standard

Set Forth By the Bandemer Plurality.

The Court first articulated a standard for establishing an

unconstitutional partisan gerrymander in its plurality opinion in

Bandemer — the only such standard that has ever been judicially

2 ___ Despite the Court’s decision in Vieth v. Jubelirer, 541 U.S. 267, the

justiciability of political gerrymander claims has not been foreclosed. 541

U.S. at 306-17 (Kennedy, J., concurring).

> Notably, the Democratic Party has failed to hold a consistent view; for

example, in Bandemer, the Democratic Party filed an amicus brief that

argued Indiana’s map was unconstitutional — yet application in this case of

the very standard argued for in that brief would likely have led to the Court’s

invalidating the Texas map that Appellants favor — the 2001 court drawn

interim map. Moreover, it is notable that Democrats and/or their associated

parties have not challenged maps in states such as California or

Massachusetts — states in which the Democratic percentage of the

congressional delegation far exceeds the Democrats’ share of the popular

vote.

4

endorsed.* The Court set this standard aside in Vieth; however,

while Bandemer 's test was never successful in identifying what

does constitute an unconstitutional political gerrymander, it is

instructive in this case insofar as it helped identify indicia of

what does not. |

Bandemer’s standard was two-pronged: plaintiffs had to

show intentional discrimination against, and actual

discriminatory effects upon, an identifiable political group.

Bandemer, 478 U.S. at 127. A threshold showing of

discriminatory vote dilution was required to make out an initial

equal protection case. Such vote dilution, in turn, triggered a

violation only when the electoral system was arranged in a

manner that “consistently degrades a voter’s or a group of

voters’ influence on the process as a whole.” Id. at 132

(emphasis added). Simply because a particular redistricting

map made it more difficult for a particular group, including a

political party, in a particular district to elect their

representatives was not enough to show a discriminatory effect

— winning elections was not the sole determinant of political

* Political gerrymandering equal protection claims have consistently

been analyzed under rational relationship level of scrutiny, and the RNC

does not argue here for the Court to apply a different level of scrutiny in this

context. The Court has steadfastly refused to apply strict scrutiny to

redistricting maps challenged on equal protection grounds on the basis of

political gerrymandering. See, e.g., Vieth, 541 U.S. 267, 313-14 (Kennedy, _

J., concurring) (“(t}he Fourteenth Amendment standard governs [political

ing claims]; and there is no doubt of that”); Bush v. Vera, 517

U.S. 952, 964 (1996) (plurality opinion) (“[w]e have not subjected political

gerrymandering to strict scrutiny”); see also Johnson-Lee v. City of

Minneapolis, 2004 WL 2212044 (D.Minn.) (2004) (“(t}his Court interprets

Justice Kennedy’s choice of language [in Vieth]...as referring to the rational

relation standard”).

5

participation.’ /d. at 131; see also Badham v. Eu, 694 F. Supp.

664, 669 (N.D. Cal. 1988) (effects test requires more than

“present or projected election results under the challenged

districts” (emphasis added)). Therefore, that fewer Democratic

congressional candidates were elected in 2004 under the Texas

Map would not be enough to invalidate the map.

The relevant discriminatory effects inquiry asked whether

voters had been denied their ability to directly or indirectly

influence the elections of a state legislature as a whole.

Bandemer, 478 U.S. at 133. The Court set forth two broad

categories in analyzing whether such a denial existed: (1)

history of disproportionate election results visited on the

plaintiffs; and (2) indicia of lack of political power or fair

representation. See id. at 139; Pope v. Blue, 809 F. Supp. 392,

396 (W.D.N.C. 1992). Further, it is important to note that an

equal protection claim based on partisan gerrymandering must

ultimately be evaluated with respect to the makeup of the

representative body that the map affects.° See Bandemer, 478

U.S. at 133. Since the Texas Map, however, is a congressional

* In addition, the Bandemer plurality held it would not be enough even

to establish that the purportedly disadvantaged party had been “placed in a

district with a supermajority of other [of that party's] voters” or that the

district “departs from pre-existing political boundaries.” See Bandemer, 478

U.S. at 140-41.

* Bandemer articulated a different inquiry for challenges directed at

individual districts rather than those, such as in this case, which are directed

at a statewide map. See Bandemer, 478 U.S. at 133. Since this case involves

a congressional map, the relevant inquiry must be the Texas's voters’

influence on the makeup of the United States House of Representatives as

a whole. Appellants’ challenge would therefore be properly supported by

evidence of continued frustration of the will of a majority of the voters or

effective denial to a minority of voters of a fair chance to influence the

political process nationwide, rather than simply within the state of Texas. /d.

at 133. Regardless of which point of reference is used, however, the

threshold is not met in this case.

6

map, any accurate measure of “fairness” must view the Texas

delegation in the context of the United States House of

Representatives — and in 2004, Democrats won 46.6 percent of

the national congressional vote and 46.4 percent of House

seats. CLERK OF THE U.S. HOUSE, REPORT ON STATISTICS OF

THE PRESIDENTIAL AND CONGRESSIONAL ELECTION OF

NOVEMBER 2, 2004 (2005) available at

http://clerk.house.gov/members/electionInfo/2004election.pdf

(last visited Jan. 27, 2006). The Texas Map cannot be adjusted

without altering this national balance. Appellants wholly fail to

address this concern, or offer to any explanation as to why this

demonstrates some “unfairness” on the part of the Texas Map.

Justice Powell, in his Bandemer concurrence, articulated

an alternative standard for unconstitutionality that, although

rejected by the Court in Vieth, the Texas Map also survives.

Adhering to the intent and effect framework, Justice Powell

wrote that the relevant inquiry’s focus should be “whether

district boundaries had been drawn solely for partisan ends to

the exclusion of all other neutral factors relevant to the fairness

of redistricting.” Bandemer, 478 U.S. at 161 (Powell, J.,

concurring in part and dissenting in part). Justice Powell

offered the following factors, among others, to consider: (1) the

shapes of voting districts and adherence to established political

subdivision boundaries; (2) the nature of the legislative

procedures by which the apportionment law was adopted; (3)

any legislative history reflecting contemporaneous legislative

goals; and (4) evidence concerning population disparities and

-

i

statistics tending to show vote dilution.’ /d. at 161. Appellants

fail to offer support evidencing discriminatory effect in any of

Justice Powell’s suggested categories; if anything, the evidence

demonstrates that the Texas Map redresses such discriminatory

effects that had been visited upon Republicans. See Henderson

v. Perry, 399 F. Supp. 2d 756 (E.D. Tex. 2005).*

Over time, lower courts attempting to apply Bandemer in

political gerrymandering cases unanimously failed to find a

constitutional violation. See Vieth, 541 U.S. at 279-80.

Undoubtedly, some of this record is due to the difficulties

inherent in applying Bandemer's test and in attempting to

discern a concept as slippery as “political fairness.” It is also

due, however, to the high threshold the Bandemer plurality set

’ This standard was rejected by the Court in Vieth: “Fairness is

compatible with noncontiguous districts, it is compatible with districts that

straddle political subdivisions, and it is compatible with a party not winning

the number of seats that mirrors the proportion of its vote. Some criterion

more solid and more demonstrably met than that seems to us necessary to

enable the state legislatures to discern the limits of their districting

discretion, to meaningfully constrain the discretion of the courts, and to win

public acceptance for the courts’ intrusion into a process that is the very

foundation of democratic decision making.” 541 U.S. at 292.

* The Henderson Court cited multiple sources in support of its view of

past Texas redistricting maps as highly partisan gerrymanders. See

Henderson, 399 F. Supp. 2d at 768 n. 47 (citing MICHAEL BARONE, THE

ALMANAC OF AMERICAN POLITICS 2004, at 1510 (2003) (“The plan

carefully constructs democratic districts with incredibly convoluted lines and

packs heavily Republican suburban areas into just a few districts”) and Brian

P. Marron, Doubting America's Sacred Duopoly: Disestablishment Theory

and the Two-Party System, 6 TEX. F. ON C.L. & C.R. 303, 307 (2002)

(“Texas experienced what is sometimes referred to as ‘the great partisan

gerrymander of ‘91’... this ‘packing’ strategy helped the Democrats in the

1992 election to win 21 of the other 22 districts”).

for finding a partisan gerrymander unconstitutional.’ See

Bandemer, 478 U.S. 109; see also Pope, 809 F. Supp. 392. This

bar is high for good reason: too low a threshold would invite

attacks on virtually every single legislatively drawn map,

swamp the federal courts in litigation, and force the judiciary

ever deeper into the “political thicket.” See Bandemer, 478 U.S.

at 143 (noting that the standard was “of necessity a difficult

inquiry”); see also Vieth, 541 U.S. at 300-01 (“{t}he vaguer the

test for availability, the more frequently interest rather than

necessity will produce litigation”); Colegrove v. Green, 328

U.S. 549, 556 (1946). Appellants have offered no justification

for lowering the bar in this case.

B. The Texas Map Survives Any Cognizable

Standard of Vote Dilution.

More than satisfying Bandemer'’s constitutional standard,

the Texas Map meets any “substantive notion of fairness” and

survives scrutiny under any cognizable standard of vote

dilution. See Vieth, 541 U.S. at 299, 344. This is underscored

by Texas’s redistricting history — about which the District Court

analyzing the Texas Map in Henderson v. Perry, 399 F. Supp.

2d 756 (E.D. Tex. 2005), stated:

* During oral argument in Vieth, the following colloquy took place

between Appellant’s counsel, Paul M. Smith and Chief Justice Rehnquist:

Mr. Smith: But the lower courts have since effectively

overruled Bandemer by requiring factual

showings of plaintiffs that are impossible and I

submit irrational...

The Chief Justice: Do you think the lower courts didn’t follow

Bandemer then? | mean, Bandemer set a very

high standard. MP3 File: Oral Argument in

Vieth, 541 U.S. 267 (argued Dec. 10, 2003),

available at http://www.oyez.org/audio/cases/

1648/argument.mp3.

9

While the present plan, drawn by a Republican Party

majority in 2003, has been decried as egregious, the

story must begin with the earlier map drawn by a

Democratic Party majority in 1991. That plan, put in

place following the 1990 census, was cited in the

political science literature as an extreme example of

what one party can do in drawing a redistricting map

to the detriment of the other. In 2000, the Democratic

Party gerrymander was still in place and, although

Republicans now enjoyed substantial statewide

majority strength, the results of the congressional

elections favored Democrats by a seventeen to

thirteen margin. Jd. at 767-68.

No one standard came out of Vieth, but four different

potential standards were suggested — one by the plaintiffs, and

one by each dissenting justice. The Texas Map does not meet

any of these standards.

The Texas Map Yielded Election Results That Were

Closer to Proportional Partisan Representation

Than Those Under the 2001 Court Drawn Map.

While the Court has rejected proportionality as a

requirement, it is relevant as a measure of “fairness” for

purposes of surviving a vote dilution claim.'® See Johnson v.

'© This Court has repeatedly rejected any claim that the Constitution

“requires proportional representation or that legislatures in reapportioning

must draw district lines to come as near as possible to allocating seats to the

contending parties in proportion to what their anticipated statewide vote will

be.” See Vieth, 541 U.S. at 288 (“{the constitution] guarantees equal

protection of the law to persons, not equal representation in government to

equivalently sized groups”); see also Whitcomb v. Chavis, 403 U.S. 124,

160 (1971) (“we are unprepared to hold that district-based elections decided

by plurality vote are unconstitutional in either single or multi-member

districts simply because the supporters of losing candidates have no

legislative seats assigned to them”).

10

De Grandy, S12 US. 997, 1023 (1994). Indeed,

“disproportionate election results” has been the gravamen of

virtually every political gerrymandering complaint, underlying

most standards suggested to adjudicate political

gerrymandering claims. The Texas Map resulted in party

representation in the Texas congressional delegation that

closely reflected the percentage of the congressional vote each

party won in 2004. As a result, the 2004 delegation was

undeniably closer to being proportional than the 2001

delegation elected under the interim court drawn map (or

elected under any other Texas congressional map in decades)."’

Moreover, judging fairness in this regard, the Texas Map

exceeds both maps that were challenged, and upheld by the

Court, in Bandemer and Vieth."

‘| See, e.g., MICHAEL BARONE, THE ALMANAC OF AMERICAN POLITICS”

2004, (2003) at 1508 (“In the U.S. House races, as they have since 1994,

Republicans won more votes than Democrats, but fewer seats, thanks to a

1991 Democratic redistricting plan which was closely followed by a court

in 2001”).

'2 In Bandemer, the Democrats had received 51.9% of the votes cast for

the State House of Representatives statewide to the Republicans’ 48.1%, yet

out of 100 available seats, the Democrats had won only 43 to the

Republicans’ 57. Despite these results, the Court refused to find Indiana’s

map in violation of the Equal Protection Clause. Bandemer, 478 U.S. 109.

Such quantitative “unfairness” also existed under the 2002 Pennsylvania

congressional redistricting map challenged in Vieth. 541 U.S. 267. The Vieth

map resulted in ‘Republicans controlling 63% of Pennsylvania’s

congressional seats despite the fact that Republican statewide candidates

captured only 46% of the vote against 51% for the Democrats. See Bureau

of Commissions, Elections and Legislation, Pennsylvania Department of

State, 2004 Genera] Election Returns, available at

http://web.dos.state.pa.us/cgi-bin/ElectionResults/elec_archive.cgi?which=

Archive (last visited Jan. 26, 2006).

11

There Is No History of Disproportionate Election

Results Visited Upon Appellants.

Texas electoral history displays no signs of

disproportionate election results affecting the Democratic Party.

Indeed, if this history demonstrates anything at all it is that

Appellants benefited from disproportionate election results for

decades and the Texas Map merely corrected the Democrats’

disproportionate hold on the Texas congressional delegation.

Or, in the words of the Henderson Court:

The State’s description of the 2003 Texas legislative

plan as dismantling a prior partisan gerrymander that

had entrenched a minority party [the Democrats], in

order to allow a party with overwhelming statewide

_ Voting strength [the Republicans] to capture two-

thirds of Texas’s congressional delegation, is a

characterization that the record supports. Henderson,

399 F. Supp. 2d at 770 (emphasis added).

Moreover, Appellants’ complaint is based only upon the

results of the 2004 election. Yet this Court has been clear that

a partisan gerrymandering claim is particularly difficult to

support when it comes after just a single election held under a

newly redrawn map. See Bandemer 478 U.S. at 135 (“[rjelying

on a single election to prove unconstitutional discrimination is

unsatisfactory”). Indeed, without a finding that a

reapportionment will consign a political party to the minority

during a decade or that that party “has no hope” of doing better

in the next round of redistricting, it is an error to find an equal

protection violation. /d. at 135-36; cf Vieth, 541 U.S. at 363-64

(Breyer, J., disscnting). Appellants do not, because they cannot,

demonstrate anything of the sort.

12

There is No Indicia of Lack of Political Power and

Denial of Fair Representation.

In order to demonstrate lack of political power and denial

of fair representation, a plaintiff must show that his or her

political group has “essentially been shut out of the political

process.” See id at 139. Yet Appellants have offered no

evidence, nor have they alleged, that there has been any

interference with their fundraising, registration, organizing,

voting, campaigning, or other activities. See Badham, 694 F.

Supp. at 671-72. Indeed, despite their recent lack of success at

the polls, the Texas Democratic Party has successfully raised

money, registered voters, organized, and mounted vigorous

campaigns up and down the ballot in Texas in 2004. Rather

than being shut out from the process, the Texas Democratic

Party is fully engaged in it. For example, on January 7, 2006

the Galveston County Democratic Party hosted a “Turn Texas

Blue” event. See http://www.galvestoncountydemocraticparty

.com/Special/TTB/index.htm. “Turn Texas Blue” featured

prominent national and state Democratic speakers such as

Democratic National Committee Chairman Howard Dean,

Texas Democratic Party Chairman Charles Soechting, 2004

Democratic vice-presidential nominee John Edwards, General

President of the United Steelworkers Union Leo Gerard, and —

notably — 2006 Texas Democratic congressional candidates

Nick Lampson and Shane Sklar. See Texas Democrats To Meet

On The Island, THE [Galveston County, TX] DAILY NEWS,

13

Dec. 28, 2005. Finally, reports indicated strong grassroots and

registration activity by the Texas Democrats in 2004."

1. The Vieth Plaintiffs’ Standard.

In Vieth, the plaintiffs’ suggested test used Bandemer's

two-prong framework and identified specific factors for

determining whether a discriminatory effect had been visited

upon the purportedly disadvantaged political party. Under this

test, the requisite effect would be shown when (1) the plaintiffs

show that the districts systematically “pack and crack” the rival

party’s voters, and (2) the court’s examination of the “totality

of the circumstances” confirms that the map can thwart the

plaintiff s ability to translate a majority of votes into a majority

of seats. See Vieth, 541 U.S. at 286. Even setting aside the

Court’s unwillingness to view the results of a single election as

sufficient evidence of discrimination, Appellants have not,

because they cannot, demonstrate that the Texas Map

systematically cracks and packs Democratic voters. Justice

Scalia noted about this test in Vieth that plaintiffs’ test would

invalidate a map only “when it prevents a majority of the

electorate from electing a majority of the representatives.” /d.

at 287. Yet Appellants cannot make such a showing here; the

'% Travis County Democratic Party Chairman Chris Elliot issued a

glowing press release with respect to this activity, stating: “I cannot stress

enough how great [the 2004] election was for the Travis County Democratic

Party as a whole. We saw more grassroots enthusiasm and anticipation in

this election than in any other in recent memory. In addition, the Democratic

enthusiasm in Travis [County] seems to be spreading to neighboring

counties as Hayes and Williamson [counties] ramped up their Democratic

activism during this election cycle.” Chris Elliot, A Message from TCDP

Chair Chris Elliot, Travis County Democratic Party Press Release, Nov.

2004 (emphasis added). This view was supported by the Travis County

Constable, Bruce Elfant, who stated: “I think the Texas Democratic Party is

on the rebound...[w]e’re seeing record voter registration drives and an

interest level that [ haven’t seen in years.” April Castro, Texas Democrats

Hopeful Despite Low Point, THE ASSOCIATED PRESS, July 30, 2004.

14

most they can show is that the Texas Map brings the state’s

congressional representation closer to proportionality than

virtually any Texas map in decades. Indeed, under the Vieth

plaintiffs’ standard the Texas 2001 interim court drawn map

would likely have been overturned as a partisan gerrymander.

2. The Vieth Dissenters’ Standards.

In Vieth, Justice Souter’s dissent articulated a standard for

identifying unconstitutional partisan gerrymandering that

focused on individual districts, rather than on an entire

statewide map. Vieth, 541 U.S. at 343-55. This standard offered

a five-step prima facie test for adjudicating partisan

gerrymandering claims. To meet this test, Appellants would be

required to show that (1) they are members of a cohesive

political group; (2) that the district of their residences paid little

or no heed to traditional districting principles; (3) that there

were specific correlations between the district’s deviations

from traditional districting principles and the distribution of the

population of their group; (4) that a hypothetical district exists

which includes the plaintiff's residence, remedies the packing

or cracking of their group, and deviates less from traditional

districting principles; and (5) that Appellees acted intentionally

to manipulate the shape of the district in order to pack or crack

their group. First, the Court has indicated that packing and

cracking must be dilutive in order to trigger a violation, see

Shaw v. Reno, 509 U.S. 630 (1993), and as discussed above, the

Texas Map is not dilutive. Second, it is illogical to believe that

the Texas Map fails this test when the very relief that

Appellants ask this Court to grant is a return to a map — the

2001 court drawn interim map — that under this test is more of

a partisan gerrymander.

The standard outlined in Justice Stevens’s dissent also

focuses on individual districts, rather than on an entire

statewide map. Vieth, 541 U.S. at 317-41. Under this standard, -

IS

partisan gerrymandering claims would be analyzed under strict

scrutiny — if partisan motivation was the predominant

consideration in drawing district lines, absent a showing of

neutral justificatory criteria, the district would be invalid. In

this case, however, no sophisticated analysis is necessary to

demonstrate that the Texas Map passes the test. A cursory

visual inspection of the Texas Map suffices to show that the

Texas Legislature adhered to traditional redistricting criteria,

particularly when compared to Texas’s last legislatively

enacted congressional map, the 1992 map."*

Justice Breyer’s dissent sets forth several hypotheticals,

arranged on a continuum, which might indicate

unconstitutional political gerrymandering. Vieth, 541 U.S. at

355-68. The first scenario, one sufficient to support a claim,

would require Appellants to show that (1) they failed to win a

majority of the seats after winning a majority of the votes in

two consecutive elections; and (2) that no neutral explanation

for this situation exists. Each of Justice Breyer’s other scenarios

fall further from supporting a claim, but all search for the same

thing — “unjustified entrenchment.” But the evidence is clear

that, if anything, it was the Democratic congressional

delegation that had been unjustifiably entrenched, and that the

Texas Map merely dislodged their entrenchment. Since 1994,

or five election cycles, Republicans have won a majority of the

votes for congress, but until 2004 failed to win a majority of the

seats. The Democrats, conversely, have not won a majority of

'‘* The Texas Map is also superior in this regard to the court approved

1996 Texas map that resulted from the Court’s decision in Bush v. Vera, 517

U.S. 952 (1996).

16

the Texas congressional vote since 1992, yet they held a

majority of the seats until 2004.‘

fl. THE VOTING RIGHTS ACT OF 1965 IS A

STATUTORY SHIELD TO PROTECT MINORITY

POPULATIONS, NOT A PARTISAN SWORD.

District 23 is represented by Henry Bonilla, a Hispanic

Republican. Appellants argue that Mr. Bonilla does not

constitute a “candidate of choice” for Hispanic-Americans

because he is a Republican. Conversely, Appellants argue that

Martin Frost, an Anglo Democrat who represented District 24

under the 2001 map, was a minority candidate of choice . . .

because he is a Democrat. These odd results are brought about

by Appellants’ interpretation of Section 2 of the Voting Rights

Act, 42 U.S.C. § 1973 (§ 2) (the “Act”), which says that in

order for a congressional district to “perform” for minorities the

district must elect a Democrat. Case law, together with the

Act’s language and legislative history, leave Appellants without

support. If Appellants’ interpretation of Section 2 is endorsed,

the Act’s role in protecting and increasing minority

participation and access would be undermined. Moreover,

interpreted in this manner, the Act’s constitutionality would be

drawn into question.

Such a theory of partisan-blind racial bloc voting was

expressly rejected by Justice White's and Justice O'Connor's

concurring opinions in Thornburg v. Gingles. 478 U.S. 30, 83

(1986) (White, J., concurring); id at 100-02 (O'Connor, J.,

concurring in judgment). In fact, the hypothetical set forth in

'S See, e.g., MICHAEL BARONE, THE ALMANAC OF AMERICAN POLITICS

2004, at 1508 (“In the U.S. House races, as they have since 1994,

Republicans won more votes than Democrats, but fewer seats, thamks to a

1991 Democratic redistricting plan which was closely followed by a court

in 2001”).

17

Justice White’s concurrence is virtually identical to Texas

District 23:

1 take it that there would also be a violation in a

single-member district that is 60% black, but enough

of the blacks vote with the whites to elect a black

candidate who is not the choice of the majority of

black voters. This is interest-group politics rather than

a rule hedging against racial discrimination. | doubt

that this is what Congress had in mind in amending §

2 as it did..."° Jd. at 83.

Appellants’ argument, that in every area where there is a

cognizable minority population Section 2 requires districts be

drawn so that the minority-preferred Democrat usually wins,

has also been consistently recognized and rejected by lower

courts with the same justification. '’

"© Justice White's opinion is the controlling opinion on this issue. See

Gingles, 478 U.S. at 83 (White, J., concurring), id. at 100-02 (O'Connor, J.,

concurring in judgment). See also Uno v. Holyoke, 72 F.3d 973, 981 (ist

Cir. 1995) (“{WyJhen racial antagonism is not the cause of an electoral defeat

suffered by a minority candidate, the defeat does not prove a lack of

electoral opportunity but a lack of whatever else it takes to be successful in

politics”). Given the Court’s ruling on what constituted a cohesive voting

group in Quilter v. Voinovich, 981 F. Supp. 1032 (N.D.Ohio 1997), aff'd,

523 U.S. 1043 (1998), it is questionable whether polarized voting even

exists in District 23.

" See, e.g., Hall v. Virginia, 276 F. Supp. 2d 528, 530 (E.D. Va. 2003),

aff d, 385 F.3d 421 (4th Cir. 2004); Lewis v. Alamance County, 99 F.3d

600, 617 (4th Cir. 1996), Rodriguez v. Pataki, 308 F . Supp. 2d 346, 382,

386, 401, 403, 427 n.134 (S_.D.N_Y. 2004), (“The Voting Rights Act does

not guarantee that mominees of the Democratic Party will be elected, even

if black voters are likely to favor that party's candiidates.”); Nixon v. Kent

County, 76 F.3d 138), 1392 (6th Cir. 1996) (A “group that is too small to

be expected to win a seat, were it purely a political group, cannot

legitimately have heightened expectamons because the basis for the group's

existence is tied to the race of its members”); Baird v. Consol. City of

18

Appellants also argue that former District 24 should be

protected by Section 2. In short, that minority-majority districts

— the method by which the Texas legislature here chose to

comply with the Act — actually violate Section 2.'* The record

is clear, however, that District 24 was mever a minority

performing district, it was merely a Democratic one.'* Further,

the record is clear that the Texas legislature took care to comply

with the Act’s requirements. For example, a new Hispanic

controlled district, District 25, was drawn, and a new

Democratic district was created, District 9, that elected an

African-American Democrat. All of the other performing

minority districts, including Congressman Bonilla’s district,

were drawn in a manner so that they would continue to elect

minority representatives as they had previously. Indeed, the

Texas Map enhances minority representation. The prior map

had resulted in five Hispanic Democrats, one Hispanic

Republican, and two African-American Democrats, being

elected — a total of eight. Under the current map, five Hispanic

Democrats, three African-American Democrats, and one

Hispanic Republican, were elected — for a total of nine. Plus an

Indianapolis, 976 F.2d 357, 361 (7th Cir. 1992); see also Michael A. Carvin

and Louis K. Fisher, A Legislative Task: Why Four Types Of Redistricting

Challenges Are Not, or Should Not Be, Recognized by Courts, 4

ELECTION L.J. 2, 12-27 (2005).

'* — Minority-majority districts are districts in which a majority of the

voting age population are a racial minority. See Johnson v. De Grandy, 512

U.S. 997, 1023 (1994).

‘8 The trial record offers the following support for this contention. First,

African-Americans constituted only 21.4% of the population in District 24.

See Joint Appendix, at 5a. Second, Anglos constituted the District’s largest

ethnic group, and made up a majority of the District’s voting age population.

Finally, no African-American candidate ever challenged Martin Frost in a

Democratic primary, so there is no baseline against which to test Frost’s

African-American support. See id , at 55a.

19

additional seat contrelled by the Hispanic electorate was

created, District 25.

That the Act cannot be used to aid.one political party at the

expense of another, even if one party is supported by some

minority groups, is only further underscored by its legislative

history. Resulting from the violence that surrounded efforts in

early 1965 to register African-American voters in Selma,

Alabama, the Act was clearly meant to address matters of race,

not political party affiliation. Indeed, President Lyndon Johnson

was focused solely on ending practical barriers to minority

voting — which he identified and broke imto three categories: (1 )

technical, (¢.g., poll taxes) (2) non-cooperation, and (3)

subjective (e.g. literacy tests). See MIESSAGE FROM THE

PRESIDENT OF THE UNITED STATES RELATED TO THE RIGHT

TO VOTE, 89th Cong. (ist Sess. 1965). This singular focus on

ending the practical barriers to voting faced by minorities is

further demonstrated by President Johnson’s speech to a special

joint-session of Congress concerning the Act, in which he stated:

The issue of equal rights of American Negroes is [a

challenge to the values and purposes of America.} And

should we defeat every enemy, and should we double

our wealth and conquer the stars and still be unequal to

this issue, then we will have failed as a nation. And we

meet here tonight as Americans — not as Democrats or

Republicans — we are met here as Americans to solve

that problem.” Jd. (emphasis added).

» In this same statement, President Johnson goes so far as to name

legislators from both parties in calling for the Act’s passage: “[a}nd so at the

request of your beloved Speaker and Senator from Montana, the Majority

Leader, Mr. Mansfield, and the Senator from Illinois, the Minority Leader.

Mr. Dirksen, and Mr. McCullouch and others, Members of both parties... |

come here to ask you to share this task with me and to share it with the

people we both work for.” MESSAGE FROM THE PRESIDENT OF THE UNITED

STATES RELATED TO THE RIGHT TO VOTE, 89th Cong. (ist Sess. 1965).

20

The Act’s legislative history, saturated with discussion

about ending barriers to minority voting, is virtually absent of

any reference to political party representation. Indeed, the

legislative history expressly disclaims congressional intent to

establish any right to have members of even protected classes

elected in numbers equal to their proportion in the population.”'

In fact, “it was generally agreed that the concept of certain

identifiable groups having a right to be elected in proportion to

7! It is abundantly clear that “during the hearings, aunanimous consensus

was established, among both the opponents and proponents of the results

test, that the test for Section 2 claims should not be whether members of a

protected class have achieved proportional representation.” S. REP. No. 97-

417, at 193 (1982) (additional views of Senator Robert Dole), as reprinted

in 1982 U.S.C.C.A.N. 177, 364. This is so because “[t}he fifteenth

amendment and the Voting Rights Act of 1965 protect voter access only. .

. . Neither the Amendment nor Section 2 of the Act explicitly or impliedly

asserts that the voter is entitled to any additional rights or privileges after his

vote has been taken, or that the outcome or result of the election with respect

to the success or failure of minority candidates bears any relation to an

individual’s right to vote. .. . Why? Because the right to vote is an

individual right of equal access to the ballot, not the collective right of a

particular {group] to a certain share of elected officials after each individual

has exercised his right to vote and gone home.” S. REP. NO. 97-417, at 221- -

22 (1982) (minority views of Senator John P. East), as reprinted in 1982

U.S.C.C.A.N. 177, 391-92; see also id. at 28 (JudiciarFy Committee Report),

as reprinted in 1982 U.S.C.C.A.N. 177, 206 (“Section 2 protects the right

of minority voters to be free from election practices, procedures or methods,

that deny them the same opportunity to participate in the political process

as other citizens enjoy.”); id. at 16 (Judiciary Committee Report), as

reprinted in 1982 U.S.C.C.A.N. 177, 193 (“[T]he Committee has amended

Section 2 to permit plaintiffs to prove violations by showing that minority

voters were denied an equal chance to participate in the political process”);

accord A.R. REP. No. 97-227, at 30 (1981) (“The proposed amendment

does not create a right of proportional representation. Thus, the fact that

members of a racial or language minority group have not been elected in

numbers equal to the group’s proportion of the population does not, in itself,

constitute a violation of the section although such proof, along with other

objective factors, would be highly relevant. Neither does it create a right to

proportional! representation as a remedy.”).

21

their voting potential was repugnant to the democratic

principles upon which our society is based. Citizens of all races

are entitled to have an equal chance of electing candidates of

their choice, but if they are fairly afforded that opportunity, and

lose, the law should offer no redress.” S. REP. NO. 97-417, at

193 (1982) (additional views of Senator Robert Dole), as

reprinted in 1982 U.S.C.C.A.N. 177, 364.

Finally, to argue that elected Republicans would play such

an integral role in legislation designed to elect more Democrats

defies common sense. The Act itself, it is widely

acknowledged, was drafted in Senator Everett Dirksen’s office,

the Republican Senate Minority Leader from Illinois.” One

historian describes the Republican Senator’s role as follows:

The Civil Rights Acts of the 1960s were [Dirksen’s]

Acts. He did more than sponsor them. He did more

even than produce the necessary votes to enact them.

‘ He also did what few of his colleagues were capable

of doing: he played the principal role in drafting their

language, and thus determined their exact legislative

thrust and intent. NEIL MACNEIL, DIRKSEN:

PORTRAIT OF A PUBLIC MAN 4 (The World Pub. Co.

1970) (emphasis added).

It is hard to imagine that Senator Dirksen intended for the

Act to benefit his opposing political party. Indeed, by one

2 —_Notonly did Senator Dirksen play a large role in the Act’s drafting, but

he actively lobbied his colleagues to support it. See BYRON C. HULSEY,

EVERETT DIRKSEN AND HIS PRESIDENTS: HOW A SENATE GIANT SHAPED

AMERICAN POLITICS 210-11 (Univ. Press of Kansas 2000) (“Leyislative

aides and lawyers from the Justice Department gathered daily in Dirksen’s

office to draft the legislation. At the close of every day Dirksen would return

from the Senate floor and ask, ‘well, boys, what have you done today?’

After he was briefed, he would open up the bar, and when one or two

conservative Republicans stopped by for a drink, the lawyers from Justice

had a chance to lobby for the bill”).

22

account, in a conversation with his Republican Senate

colleagues Senator Dirksen stated: “Republican senators [will]

have to assume leadership because the Democrats [will] not do

so.” BYRON C. HULSEY, EVERETT DIRKSEN AND HIS

PRESIDENTS: HOW A SENATE GIANT SHAPED AMERICAN

POLITICS 210-11 (Univ. Press of Kansas 2000). The Act is not

a partisan tool. There is no reason for the Court to depart from

the meaning given to the Act by Congress and the courts — the

protection of racial minorities.

CONCLUSION

For the reasons set forth above, amicus RNC urges the

Court to affirm the District Court decision.

Respectfully submitted,

THOMAS J. JOSEFIAK

Counsel of Record

SEAN CAIRNCROSS

REPUBLICAN NATIONAL

COMMITTEE

310 First Street, S.E.

Washington, D.C. 20003

(202) 863-8500

February 1, 2006 Counsel for Amicus Curiae