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

9

in such normal redistricting efforts,’ the impingement on

various voters’ First Amendment rights is justified in such

circumstances because drawing new lines also serves impor-

tant state interests.

But this is not the usual case. As noted above, redistrict-

ing in the modern era has been limited to those situations

where no valid map exists. Indeed, “[s]ince 1910, when the

House was fixed in size at 435, the norm has been that a cen-

sus is followed by reapportionment across state? to fit the

population, and is followed in turn by redistricting within the

states. After 1910, no state undertook a second redistricting

within the 10-year period between censuses except when

ordered by the courts.” Norman Omstein, One Person, One

Vote Is Vital — When It's Applied Within Reason, Roll Call,

Dec. 14, 2005, at 2, available at 2005 WLNR 20068295. In

other words, redistricting has occurred when it needs to oc-

cur — usually when new census data render extant maps inva-

lid under the one-person, one-vote principle.

Here, by contrast, redistricting was undertaken even

though the existing Congressional map was valid and would

have remained so until the next census. See Tex. Att’y Gen.

Op. GA-0063 (Apr. 23, 2003) (concluding that State law did

not require a new map and that 2001 map would remain

valid until 2010 census). It was also undertaken without

reference‘to any new population data - and without any ef-

fort to obtain or create such data — that could in theory justify

a mid-decade redistricting. These differences are of pro-

? See Vieth, 541 U.S. at 285 (“The Constitution clearly contemplates

districting by political entities, see Article I, § 4, and unsurprisingly that

turns out to be root-and-branch a matter of politics.”); Miller v. Johnson,

515 U.S. 900, 914 (1995) (“[RJedistricting in most cases will implicate a

political calculus in which various interests compete for recognition”);

Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (“Politics and political

considerations are inseparable from districting and apportionment. . . .

The reality is that districting inevitably has and is intended to have sub-

stantial political consequences.”).

—”

10

found consequence, because they squarely raise the question

whether any cognizable state interest was served by the

promulgation of a new map in 2003.

Indeed, the normal presumption that new maps are valid

should not apply here without (at the very least) a careful

examination of what interest the State has offered in place of

the valid interests at stake when redistricting to replace an

invalid map. The absence of those interests in the context of

replacing a valid map means that there is necessarily a new

balance of interests under this Court’s “flexible standard” for

measuring burdens on First Amendment rights under election

regulations.

Without the usual presumptions in place, heightened

scrutiny is triggered due to the burdens on expression inher-

ent in redistricting and present to a self-evident degree here.

Redistricting based on instincts of political self-preservation

or partisan gain implicates “the First Amendment interest of

not burdening or penalizing citizens because of their partici-

pation in the electoral process, their voting history, their as~

sociation with a political party, or their expression of politi-

cal views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring

in the judgment) (citing Elrod v. Burns, 427 U.S. 347 (1976)

(plurality opinion)). This is so because voters are entitled to

vote their conscience and to align with political parties that

share their views without the specter of viewpoint-based

government action predicated on the exercise of that expres-

sion. In this instance, the Texas Legislature chose to redraw

two-year-old district lines that had been drawn to reflect vot-

ing trends in the State and that had in the prior election pro-

duced results consistent with expectations solely and specifi-

cally to suppress further the representation of their political

opposition.

It is neither surprising nor significant that this Court has

not previously employed this flexible standard in a partisan

gerrymandering case. This Court has often extended its First

11

Amendment jurisprudence in the past to account for new sets

of circumstances. See Denver Area Educ. Telecomms. Con-

sortium, Inc. v. FCC, 518 U.S. 727, 740 (1996) (“The history

of this Court’s First Amendment jurisprudence, however, is

one of continual development, as the Constitution’s general

command that ‘Congress shall make no law . . . abridging the

freedom of speech, or of the press,’ has been applied to new

circumstances requiring different adaptations of prior princi-

ples and precedents. The essence of that protection is that

Congress may not regulate speech except in cases of extraor-

dinary need and with the exercise of a degree of care that we

have not elsewhere required.”). Indeed, members of this

Court have already recognized the relevance of the First

Amendment in the partisan gerrymandering context. See

Vieth, 541 U.S. at 314-15 (Kennedy, J., concurring in the

judgment); id. at 324-25 (Stevens, J., dissenting).

For these reasons, the Texas Legislature’s decision to

draw patent viewpoint-based classifications during an un-

precedented mid-decade redistricting in which no new popu-

lation data was used requires the application of heightened

judicial scrutiny.

Il. THE TEXAS REDISTRICTING PLAN IS INVALID -

UNDER THIS COURT’S FLEXIBLE STANDARD

FOR EVALUATING ELECTION REGULATIONS

Texas cannot identify a state interest that is sufficiently

important to justify the First Amendment burdens imposed

by the 2003 Plan. Between them, Texas and the court below

identified two purported state interests. Although the State

on remand principally asserted that its actions should be con-

sidered nonjusticiable, it also argued that it had a valid pur-

pose in realigning the map to make “Texas’s congressional

delegation more like Texas’s voting patterns.” See State

Defs’ Opening Br. on Remand, available at 2003 WL

24051486. The three-judge panel below endorsed that prin-

ciple and identified a second putative state interest: permit-

12

ting state /egislatures to replace even valid court-drawn

maps. See Henderson v. Perry, 399 F. Supp. 2d 756, 767-69

(E.D. Tex. 2005) (political purposes) (citing Gaffney, 412

U.S. at 754); id. at 775-76 & n.82 (replacing court-drawn

maps) (collecting cases). Even if these ostensible interests

provided “rational” bases for legislation ~ which the Center

does not concede — they could not rise to the level of “impor-

tant” state interests satisfying any form of heightened scru-

tiny.

1. The only interest actually advanced by the State of

Texas below was that of securing a “congressional delega-

tion more like Texas’s voting patterns” at a time when a cur-

rent and valid districting map was in effect. Put more di-

rectly, the State argues that it has an important state interest

in securing further partisan advantage for one political party

in the state’s congressional delegation over others. Such a

bare desire to advantage one political party and harm others

based on their political views is not even considered a le-

gitimate state interest, let alone an important one. A State

has no legitimate interest in the success of any particular

political party. See Abate v. Mundt, 403 U.S. 182, 187

(1971) (indicating that partisanship in favor of groups was

not a legitimate state interest sufficient to justify population

deviations among legislative districts); Kirkpatrick v.

Preisler, 394 U.S. 526, 534 (1969) (same). If this were not

so, then all sorts of discriminatory election laws might be

permissible. See Vieth, 541 U.S. at 312 (Kennedy, J., con-

curring in the judgment) (“If a State passed an enactment

that declared ‘All future apportionment shall be drawn so as

most to burden Party X’s rights to fair and effective repre-

sentation, though still in accord with one-person, one-vote

principles,’ we would surely conclude the Constitution had

been violated.”).

In addition, the fact that Texas frames its interest in elect-

ing more Republicans to Congress in terms of an interest in

13

better reflecting Texas voting patterns does not make the

asserted interest any more capable of surviving heightened

scrutiny. The notion that there is such a thing as a fairly

“balanced” map that accurately reflects statewide voting pat-

terns is illusory. A party’s share of the vote varies from race

to race and election cycle to election cycle, and which race or

aggregation of races constitutes the appropriate proxy essen-

tially is a matter of perspective. A state interest that is so

elusive and ephemeral by nature cannot be an “important”

state interest sufficient to justify burdening certain voters’

First Amendment rights. To hold otherwise would be to

invite States to draw new lines for every election cycle on

the grounds that — based on whatever race a State wished to

use at the moment — the new map better reflected statewide

voting patterns. Permitting States to re-redistrict whenever

they believed that the current map failed to sufficiently re-

flect statewide voting patterns would result in constant re-

redistricting that would wreak the kind of “chaos” on the

“democratic processes” that is antithetical to the very pur-

pose of election regulations.’ Burdick, 504 U.S. at 433 (quo-

tation omitted).

2. The other interest offered by the court below fares no

better. The panel explained that it is “within the prerogative

> Of course, a State may attempt to achieve what it believes to be a

politically balanced map in the course of normal redistricting. See Gaff-

ney, 412 U.S. at 754. But merely because it is permissible for a State to

pursue such an end does not mean that political balance is an important

State interest. Indeed, unlike the predicates for a traditional redistricting,

political balance is neither a constitutional nor a legal requirement. See

Davis, 478 U.S. at 130 (“Our cases, however, clearly foreclose any claim

that the Constitution requires proportional representation or that legisla-

tures in reapportioning must draw district lines to come as near as possi-

ble to allocating seats to the contending parties in proportion to what

their anticipated statewide vote will be.”); id at 131 (“Gaffney in no way

suggested that the Constitution requires the approach that Connecticut

had adopted in that case.”).

14

of the state legislatures” “to draw their own map to replace

one imposed by a court.” Henderson, 399 F. Supp. 2d at

775. But the court strained to find any precedent to support

such a broadly framed proposition, settling instead for two

cases that involved court-made maps that — unlike the 2001

map — contained built-in expiration dates and another case

arising under circumstances entirely unlike those in this case.

See id. at 775 n.82 (collecting cases). It failed to identify any

precedent that demonstrates that a State’s purported interest

in permitting a legislature to replace a valid court-imposed

map is sufficiently important to justify the infringement of

certain voters’ core expressive rights.

To be sure, this Court has recognized that, in the absence

of an extant valid map, a new map drawn by a state legisla-

ture is preferable to one drawn by a federal court. E.g., Gaff-

ney, 412 U.S. at 749 (“Nor is the goal of fair and effective

representation furthered by making the standards of reappor-

tionment so difficult to satisfy that the reapportionment task

is recurringly removed from legislative hands and performed

by federal courts which themselves must make the political

decisions necessary to formulate a plan .... From the very

outset, we recognized that the apportionment task, dealing as

it must with fundamental ‘choices about the nature of repre-

sentation,’ . . . is primarily a political and legislative proc-

ess.”) (quoting Burns v. Richardson, 384 U.S. 73, 92 (1966),

and citing Reynolds v. Sims, 377. U.S. 533, 586 (1964)); see

also Branch v. Smith, 538 U.S. 254, 262 (2003); Connor v.

Finch, 431 U.S. 407, 414-15 (1977). But that principle was

not abrogated here. The intervention of a federal court in

this case was made necessary only by the Texas Legisla-

ture’s inability to perform its duty following the 2000 cen-

sus. When the legislature is unable to complete its task in a

timely fashion, a court may step in and promulgate a new set

of lines. Connor, 431 U.S. at 415. The fact that there is a

preference for having legislatures rather than courts draw

district lines when new maps need to be drawn does not

15

mean the State has any interest, much less an “important”

one, in replacing a court-drawn map with one drawn by the

legislature.

Moreover, the insufficiency of this purported state inter-

est is further made apparent by the fact that the 2003 Plan

governed Congressional elections, matters which are not

within a State’s unfettered discretion to regulate. The Texas

Legislature’s authority to draw the boundaries of Congres-

sional districts does not inhere in its sovereign power as a

State. Rather, this authority derives from the Elections

Clause of the United States Constitution, which permits

States to regulate only the “Times, Places, and Manner” of

elections for the U.S. House of Representatives. U.S. Const.

art. I, § 4. Importantly, this Court has made clear that a state

legislature’s power to regulate federal elections — including

its redistricting power — was not one of the powers “reserved

by” the States under the Tenth Amendment. Cook vy.

Gralike, 531 U.S. 510, 522 (2001) (“Because any state au-

thority to regulate election to those offices could not precede

their very creation by the Constitution, such power ‘had to be

delegated to, rather than reserved by, the States.’””) (quoting

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804-05

(1995)). Just as important, “the Framers understood the

Elections Clause as a grant of authority to issue procedural

regulations, and not as a source of power to dictate electoral

outcomes, to favor or disfavor a class of candidates, or to

evade important constitutional restraints.” Thornton, 514

U.S. at 833-34 (emphasis added). By definition, a State can-

not have an important interest in permitting the legislature to

craft a map that “dictate[s] electoral outcomes” when a valid

court-crafted map already secures the State’s other legitimate

interests.“

* This is not to say that a State can never have an interest in permit-

ting a legislature to replace a court-drawn map. The Center does not

dispute that a legislative map that replaced a court-imposed one could be

16

3. Finally, even assuming that. one of these asserted

state interests was sufficiently important to justify replacing

the valid 2001 Plan with a new Congressional map, the 2003

Plan is not narrowly tailored to that purpose. As noted

above, election regulations that burden voters’ First and

Fourteenth Amendment rights are evaluated under a flexible

standard and the constitutional harm inflicted should not

significantly exceed the important state interest being served.

Burdick, 504 U.S. at 434. In drafting the 2003 Plan, how-

ever, the Texas Legislature utilized 2000 census data — data

which was by then three years out of date. In so doing, the

Legislature not only burdened certain voters’ fundamental

rights, but it also drew districts in a manner wholly indiffer-

ent to the one-person, one-vote constitutional requirement.

Even if “partisan balancing” or legislative prerogative is a

sufficiently important ground for redrawing a valid Congres-

sional map, neither supposed interest can justify drawing a

new map that makes no effort to ensure actual population

equality exists between Congressional districts.°

valid, even if done mid-decade, if it advanced an important state interest,

such as updating population data, without unnecessarily classifying vot-

ers on the basis of their expressive rights.

> The Center does not suggest that the 2001 Plan's districts presently

contain equal populations or that they contained equa! populations at the

time the 2003 Plan was enacted. Rather, it merely points out that, at the

time the 2001 Plan was put in place, that Plan created districts with equal

populations based on population data that was valid for that redistricting.

In contrast, the 2003 Plan used population data which, for the reasons set

forth by the Travis County appellants, was not valid for that redistricting.

Thus, regardless of the extent to which the districts under the 2003 Plan

actually deviate from population equality, the fact remains that the 2003

Plan was enacted without any regard for the one-person, one-vote consti-

tutional requirement and without any effort to minimize actual population

deviations. The Center merely posits that a mid-decade redistricting that

involves the redrawing of valid district lines should not be deemed to be

sufficiently tailored to an important state interest absent an effort to cre-

ate actual population equality.

17

IN.THE FLEXIBLE STANDARD IS NEITHER

UNLIMITED NOR UNMANAGEABLE AS AP-

PLIED TO THE REDISTRICTING PLAN IN THIS

CASE

The foregoing framework for analyzing mid-decade par-

tisan gerrymandering claims is both limited in application

and sufficiently manageable. For the reasons stated above,

this Court’s flexible standard, which it has already applied in

the context of other election regulations, has limited applica-

bility to a map promulgated to satisfy a State’s obligation to

comply with one-person, one-vote requirements. That inter-

est is concededly a compelling one, and in such cases the

federal courts cannot “tie the hands of States,” even though

the new maps “will invariably impose some burden upon

individual voters.” Burdick, 504 U.S. at 433. Indeed, it is

uncertain whether this framework would even result in the

invalidation of all mid-decade redistricting plans.

In addition, the standard is also a manageable one. This

Court already has a wealth of experience in applying the

flexible standard to other clection regulations that burden

voters’ First Amendment rights. That precedent provides

guideposts for applying the test in a consistent and predict-

able way. Furthermore, in contrast to the standard partisan

gerrymandering case, this standard does not require this

Court to judge how much partisanship is too much. Instead,

this Court merely needs to examine whether a State can pro-

vide an important state interest that would justify redistrict-

ing when a valid map was already in place.

CONCLUSION

For the foregoing reasons, and for the reasons stated by

appellants, this Court should reverse the ruling of the District

Court and remand the case with instructions to reinstate the

valid map promulgated by the Eastern District of Texas.

JEFFREY M. WICE

P.O. Box 42442

Washington, D.C. 20015

(202) 494-7991

Respectfully submitted,

WALTER DELLINGER

(Counsel of Record)

JONATHAN D. HACKER

MATTHEW M. SHORS

CHARLES E. BORDEN

GEOFFREY M. WYATT*

O”MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

*admitted only in New York:

supervised by principals of the firm

Attorneys for Amicus Curiae

Dated: January 10, 2006

mor” 6 OO GE

Nos. 05-204, 05-254, 05-276, 05-4391 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Eppr JACKSON; LEAGUE OF Untrep LATIN AMERICAN CITIZENS;

Travis County; GI Forum or Texas,

Appellants,

v,

Rick Perry, ef ai.,

Appellees.

On APPEALS FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN District OF TEXAS

——So———ooyyyyy>> > ——o—y———————————————E——_—=S=_=____—_

Brier OF Amici Curi4z ALAN HesLop, PaD.; Rop Apatr;

GARY BERNER; JOHN A. MorGAN; JOHN B. MORGAN; AND

ROBERT WARD IN SUPPORT OF APPELLEES

a ee

E. MARSHALL BRADEN Daton L. OLDHAM

Counsel of Record 1320 Washington Street

Ropert M. DoHERTY 2™ Floor

Baker & Hostet_er LLP Columbia, S.C. 29201

1050 Connecticut Avenue (803) 799-9199

Suite 1100

Washington, D.C. 20036 — 7 om

(202) 861-1500 Lake Ridge, VA 22192

(703) 690-4066

Counsel for Amici Curiae

199240 g

COUNSEL PRESS es

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES .............. iii

~ INTERESTS OF AMICI CURIAE .............+.. 1

SUMMARY OF ARGUMENT ................... 3

MIE 5. 5 oi irae 8

I. THE APPROPRIATE TRANSLATION OF

VOTES INTO SEATS HISTORICALLY HAS

BEEN ASSESSED BY POLITICAL

SCIENTISTS USING THE “SEATS-VOTES

ey, Per ee reer er Sere rere ae 5

A. THE RELATIONSHIP OF VOTES

RECEIVED TO SEATS WON ........ 5

B. METHODOLOGICAL APPROACHES

Jideecbaeevede ended savedeuavenenes 11

1. Using Votes from Texas

Congressional Elections ......... 11

2. Using Votes from Texas Statewide

RE 6006 cetwsweedeyueveese 14

3. Using One Statewide Texas

Election as a Benchmark for Plan

Comparison to Districts Carried in

a Statewide Race ............... 16

C. THE TEXAS CONGRESSIONAL

PLANS AS PART OF THE NATIONAL

CONGRESSIONAL MAP............ 18

Contents

Page

1. Comparison using national

congressional votes overtime .... 18

2. Comparison of Texas as one of 50

separate delegations ............ 19

' D. PARTISANSYMMETRY ............ 22

Il. ISSUES THAT ARE UNIQUE TO

CONGRESSIONAL DISTRICTING PLANS

wh tbe cisieees ede ea nesbees ce enwans 22

A. ENTRENCHMENT BY INCUMBENTS

cabs coneveeseeectibaaes bSESTOOW SEs 22

B. NATIONALLEVELING ............ 24

Ill. SOLUTION TO PARTISAN GERRY-

PEPE a ov c.ceusvptgarcianesscans 24

‘ A. CONGRESSIONAL STATUTORY

DISTRICTING CRITERIA ........... 24

B. STATUTORY REQUIREMENT

FOR GEOGRAPHICALLY BASED

PEED vccnneseteceoeeseesesees 26

SE 0. oe cana coberartkeuece ban beunne 30

POU. Kb 6 Fe vevecccncedhccsdvdotbostesess la

TABLE OF CITED AUTHORITIES

CASES Page

Baker v. Carr, 369 U.S. 186 (1962) ................ 23

Bush v. Vera, 517 U.S. 952 (1996) sakeeao Deane ces 13

Connor v. Finch, 431 U.S. 407 (1977) ............. 29

Davis v. Bandemer, 478 U.S. 109 (1986) ........... 21

Easley v. Cromartie, 532 U.S. 234 (2001) ........... 26

Gaffney v. Cummings, 412 U.S. 735 (1973) ...... 3, 4,5, 21

Growe v. Emison, 507 U.S. 25 (1993) .............. 30

Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La.

BRUNER EST Saree paar ep ea epne ore ee iee ean 26

Jacobellis v. Ohio, 378 U.S, 184 (1964) ............. 29

Karcher v. Daggett, 462 U.S. 725 (1983) ........ 21, 28, 29

Miller v. Johnson, 515 U.S. 900 (1995) ............. 26

Prosser v. Election Bd., 793 F. Supp. 859 (W.D. Wis.

BOON 00-600 k aes ener ir ebesenesttdereen 28

Reynolds v. Sims, 377 U.S. 533 (1964) ........... 4,14, 21

Rogers v. Lodge, 458 U.S. 613 (1982) .............: ae

Shaw v. Hunt, 517 U.S. 899 (1996) .......... ore 26, 30

Shaw v. Reno, 509 U.S. 630 (1993) ..........00000. 26, 30

iv

Cited Authorities

Page

Thornburg v. Gingles, 478 U.S. 30 (1986) .......... 29-30

United States v. Hays, 515 U.S. 737 (1995) ......... 26

Vieth v. Jubelirer, 541 U.S. 267 (2004) ............ passim

CONSTITUTION AND STATUTES

Bs Caetinha GER: BG osc dv ns cesvcicccadccanaces 24, 25

BUA, GAGE. v n4 0 bac ban nicasavevebauns passim

Apportionment Act of 1842, ch. 47,5 Stat.491 .... 25

Apportionment Act of 1850, ch. 11,9 Stat.433 .... 28

Apportionment Act of 1862, ch. 170, 12 Stat. 572 .. 25, 28

Apportionment Act of 1872, ch. 11,17 Stat.28 .... 25

Apportionment Act of 1901, ch. 93, 31 Stat. 733 ... 25

Apportionment Act of 1911, ch. 5,37 Stat13_ ..... 25

MISCELLANEOUS /

Bruce Adams, A Model State Reapportionment Process:

The Continuing Quest for “Fair and Effective

Representation”, 14 Harv. J. on Legis. 825 (1977)

Erik Austin, Political Facts of the United States Since

of Perret rrerer tron reer | 11

Cited Authorities

Page

Michael Barone et al., The Almanac of American

CPOE ia p UbiectaecVcbescoecedes 20

Clark Bensen, Substantial Political Consequences: A

Practitioner's Perspective on Redistricting,

Extensions, Fall 2004, at5 ..............0055. 20

Bureau of the Census, Statistical Abstract of the

Ulsetied Séates, TIDES (1SGG) ... cece ecsccccces 11

David Butler & Bruce Cain, Congressional

Redistricting: Comparative and Theoretical

DEE Seccwedovacseessuscecccess 24

Cong. Globe, 36th Cong., 2d Sess. app. (1842) ..... 27, 28

Charlie Cook, The Cook Political Report ........... 20

Robert G. Dixon, Jr., Democratic Representation:

Reapportionment in Law and Politics (1968) ...... 5

Thomas R. Dye et al., Politics in America (6th ed.

TILES POT TCT TTT TTT TLE e ET TT ee 20

David M. Farrell, Electoral Systems: A Comparative

ED vs rcgbanedecideccdsecvecacs 6

The Federalist No. 10 (James Madison) (Hallowell

DME Neb ncbhsehdctevacsececsescasescees 24

The Federalist No. 56 (James Madison) (Hallowell

thc e nena wad esedbeseossaccccese 27

vi

Cited Authorities

Page

Andrew Gelman & Gary King, Enhancing Democracy

Through Legislative Redistricting, 88 Am. Pol. Sci.

SW, CEN GUPUED ch cc ckvedcdectcctccveneuscous 24

Andrew Gelman & Gary King, Estimating the

Electoral Consequences of Legislative Redistricting,

85 J. Am. Stat. Ass’n, No. 410, June 1990, at 247

dbovetdde sede saceuiskeerdadendedé ntetebeins 8

Bernard Grofman & Thomas L. Brunell, The Art of

the Dummymander: The Impact of Recent

Redistrictings on the Partisan Makeup of Southern

House Seats, in Redistricting in the New Millennium

183 (Peter F. Galderisi ed., 2005) .............. 20

Graham Gudgin & Peter J. Taylor, Seats, Votes, and

the Spatial Organization of Elections (1979) ...... 8

H.R. 2642, 109th Cong. (2005) ............00008. 25, 26

H.R. 4094, 109th Cong. (2005) .............000.. 25, 26

Judgelt, A Program for Evaluating Electoral

Systems and Redistricting Plans, at http://

gking.harvard.edu/judgeit/judgeit.html

Or ceeenvebsoseacsecepeneegnaeciosrenteaes 22

M.G. Kendall & A. Stuart, The Law of Cubic

Proportion in Electoral Results, 1 Brit. J. Soc. 183

GIDE b As cecncescodedde sivsds digaccetiveces 5,7

Kenneth C. Martis, The Historical Atlas of the United

States Congressional Districts, 1789-1983 (1982)

vii

Cited Authorities

David Mayhew, Congressional Elections: The Case of

the Vanishing Marginals, 6(3) Polity, Spring 1974,

GETED cc ccceccvceveacecstevccenecceccoscene

Richard G. Niemi, The Relationship Between Votes and

Seats: The Ultimate Question in Political

Gerrymandering, 33 UCLA L. Rev. 185 (1985) ...

Off. of the Clerk, House of Representatives,

Statistics of the Congressional Elections, http:/ /

clerk.house.gov/ members/electionInfo/

SE 6 hob iS o's ckbed os danCansdeea see

Nathaniel Persily, In Defense of Foxes Guarding

Henhouses: The Case for Judicial Acquiescence in

Incumbent-Protecting Gerrymanders, 116 Harv. L.

PD. GEE Wee eens cddnesccccéyccceedyes

Douglas Rae, The Political Consequences of Electoral

SAS GISGED 60 oe Sa cikbbnc genece vivccccsceeees

Earnest C. Reock, Jr., Measuring Compactness as a

Requirement of Legislative Apportionment, 5

Midwest J. of Pol Sci. 70 (1961) ...............

Jerrold G. Rusk, A Statistical History of the American

| TEER TEL EEREPEREETLELE Lee

Richard M. Scammon et al., America Votes 25

SUED 0 66 COREE ORY Ade we Aes CReResaeedEKes

Rein Taagepera & Matthew S. Shugart, Seats and

Votes: The Effects and Determinants of Electoral

PGE Sacccncasdesdcceoenessccedens

Page

20

10

vill

Cited Authorities

Page

Peter J. Taylor et al., The Geography of Representation:

A Review of Recent Findings, in Electoral Laws and

Their Political Consequences 184 (Bernard Grofman

& Arend Lijphart eds., 1986) ................. 6

Edward R. Tufte, The Relationship Between Seats and

Votes in Two-Party Systems, 67 Am. Pol. Sci. Rev.

GOUT so cccntanesdaccevetceveveccaneds 5, 6, 11

Rosemarie Zagarri, The Politics of Size: Representation

in the United States, 1776-1850 (1987) .......... 5

1

INTEREST OF AMICI CURIAE

Amici Curiae are academics and/or practitioners with

practical experience in the districting phase of the

apportionment process. They are all either responsible for, or

work with those responsible for, the drafting of district-based_

representational plans around the nation. Their combined

experience covers just about all of the steps of the complex

process whereby political power in America is distributed

amongst the people. All have been involved, at some level,

with districting for both congressional delegations and state

legislatures. Amici share a concern for fair redistricting and

an enlightened role for the courts in this inherently political

process.’

Amicus Alan Heslop, PhD., is Director Emeritus and

Founder of the Rose Institute at Claremont McKenna College,

Claremont, California. He was the Rose Professor of State and

Local Government at Claremont McKenna from 1967 until

2004 and is now Senior Research Fellow in the School of Politics

and Economics at Claremont Graduate University. He has also

taught political science at the University of Texas and Texas

A&M. One of his major areas of interest at the Rose Institute

has been all phases of preparation for, and review of,

representational plans. He has been involved with the

districting aspects of apportionment for numerous clients over

the past four decades in many states from start to finish. He

has been an expert witness on redistricting and electoral

matters and has served on federal and state commissions.

Amicus Rod Adair is President of New Mexico

Demographic Research, Roswell, New Mexico and a State

Senator. He drafted and reviewed plans for the 2001 legislative

and congressional redistricting in New Mexico. He also

redistricted county commission and school board districts

throughout the state. In 2001 and 2002 he served as an expert

witness in New Mexico court cases involving both the

congressional and state House of Representatives redistricting.

1. No counsel for a party authored this brief in whole or in part. No

monetary contribution toward the preparation or submission of this brief

has been made by any person other than Amici Curiae and their counsel. By

letters filed with the Clerk, counsels for all parties have consented to the

filing of this brief.

2

Amicus Gary Berner is Senior Staff member of the House

Republican Caucus of the Connecticut General Assembly,

Hartford, Connecticut. In addition to his current role as Sr.

Policy Advisor to the Minority Leader, he has served as the

Caucus’s Chief of Staff (1994-2000) and as the Caucus’s

Redistricting Director (2000-2002). As Redistricting Director,

Mr. Berner had responsibility for the preparation, monitoring

and oversight of, the districting plans that are considered by

the state legislature. This includes plans for both congress and

both houses of the General Assembly. Prior to his staff

assignments Mr. Berner was twice elected to the Connecticut

House of Representatives (1987-1991), and was selected as an

Asst. Minority Leader in his second term.

Amici John A. Morgan is President, and John B. Morgan

is Vice-President of Applied Research Coordinates, Ltd.,

Reston, Virginia. Together they have over forty years of

experience with the drafting and review of districting plans

for representational entities in over a dozen states. As

redistricting practitioners they have worked on and reviewed

hundreds of maps and districting plans across the county. This

includes plans for congress and state legislatures. They advise

legislative caucuses both as to the preparation for districting

as well as the post-districting application of campaigns and

election support.

Amicus Bob Ward is the Minority Leader of the

Connecticut House, Hartford, Connecticut. Representative

Ward is currently serving in his eleventh elected term and his

sixth term as Minority Leader, making him the longest serving

legislative leader in modern Connecticut history. He

spearheaded the operation of the House Republicans’ effort

to prepare for, draft, and review the districting plans for

congress and the legislature that were considered by the

General Assembly following the 2000 census. He served on

the Reapportionment Committee, and then was appointed by

the Governor to the Reapportionment Commission which

adopted the congressional plan.

3

SUMMARY OF ARGUMENT

The 2004 Texas congressional redistricting plan is not an

excessive or egregious partisan gerrymander. As is clear from

this Court's partisan gerrymandering jurisprudence, and the

briefs of the parties in this appeal, there are many proposed

methods for attempting to measure the “ partisan fairness” of

a districting plan. The undersigned Amici seek to assist the

Court in its analysis of the 2004 Texas plan by providing the

Court with analyses — based upon election results and simple

mathematical measures — of Texas congressional plans used

in the 2000, 2002 and 2004 elections. These analyses are based

upon comparisons of these plans with generally accepted

relationships between votes received and seats won. Amici

explain this seats-votes ratio, which is often depicted in a graph

known as the “seats-votes curve,” and illustrate how a party

winning more than a majority of the votes usually wins a

supermajority of the seats due to a “seat bonus.” In support of

their analyses, Amici provide the Court with data from a

variety of different elections so that there can be no issue as to

whether Amici have “cherry picked” election results in order

to reach a desired conclusion. Regardless of the analytical

method employed, the various election results analyses

presented by Amici compel a single conclusion: the 2004 Texas

congressional plan is more “ partisanly fair” than the 2002 plan.

As the analysis in the brief shows and the District Court

concluded below, the 2004 plan more accurately represents

the partisan balance of the state of Texas. The generally

accepted seats-votes curve analysis shows that election results

under the 2004 plan are closer than those under the 2002 plan

to what is expected in a majoritarian congressional districts

election system such as ours.

This Court cannot determine that the Texas legislature

acted in an invidious manner or in a way unrelated to any

legitimate legislative objective unless it is willing to overrule

a line of precedents begun with Gaffney v. Cummings, 412 U.S.

735 (1973). The state of Texas 2004 congressional districting

plan more accurately provides for a distribution of

congressional seats based upon relative partisan strength —

election results— than the 2002 plan. This Court recognized