Amicus Curiae Brief — Jackson v. Perry (Nos. 05-276, 05-204, 05-254, 05-439)

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election systems that allow citizens who are supportive of

the free enterprise system to elect candidates of their choice.

The coalition, principally through litigation, seeks to

eliminate gerrymanders of legislative and congressional

districts and replace those gerrymandered schemes with

districts that provide fair representation to all citizens.

During the past two years the coalition has assisted litigants

and attorneys involved in redistricting litigation in Arizona,

Colorado, Georgia, North Carolina, Virginia and Texas.

INTRODUCTION AND SUMMARY OF ARGUMENT

This Court should decline to read a once-per-decade

limitation into Article I, § 4. Such a limitation would largely

displace state legislatures from their constitutional

redistricting role, a result for which there is no authority.

Additionally, adopting such a limitation would have the

unintended and undesirable consequence of shielding

gerrymanders from traditional political remedies, and

would mire the judiciary even more deeply in the political

bog.

The facts of this very case demonstrate that adopting a

once-per-decade rule will have the direct and ironic effect of

insulating post-census partisan gerrymanders from subsequent

legislative remedies. As the district court held below, its 2001

redistricting plan perpetuated the most notorious partisan

gerrymander of the 1990s. That gerrymander was replaced

by the Texas Legislature’s 2003 plan that is challenged in this

case. A-~once-per-decade rule would leave the court-

perpetuated gerrymander in place for the rest of this decade,

immunized from political remedy.

Imposing a once-per-decade limitation would also crush

redistricting reform movements in many states. Many of

these popular movements, embodied in initiatives, include

proposals to replace perceived 2001 congressional

gerrymanders with new, non-gerrymandered plans before

the 2010 census. A _ constitutional rule prohibiting

redistricting more than once in a decade would snuff-out

these reform efforts and lock in early-decade gerrymanders

until 2012.

By adopting a rule prohibiting redistricting more than

once in a decade, this Court would also hasten the

fulfillment of Alexis de Tocqueville’s trenchant observation

that “[s]carcely any political question arises in the United

States that is not resolved, sooner or later, into a judicial

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question.” 1 A. de Tocqueville, DEMOCRACY IN AMERICA 280

(P. Bradley ed. 1948). A once-per-decade rule will increase

the demand for judicial redistrictings in two ways. First, it

will increase the incentive for political parties who do not

control post-census legislative redistricting to do whatever

they can to stymie the process and force redistricting into the

courts in the hope of receiving better treatment than from

the computers of the majority party. Intervening in this

most political of activities is a task that this Court has

repeatedly characterized as “unwelcome.” Alternatively, in

those states where legislative redistricting does take place,

the rule will lead to an increase in post-enactment legal

challenges: deprived of any political remedy for perceived

post-census partisan gerrymanders, the aggrieved will have

no choice but to turn to the courts for relief. Thus, after the

decade’s first plan is in place, the proposed once-per-decade

rule would exclude political actors from the redistricting

process, formerly deemed to be solely a “political question”,

and invest the courts as the primary tenants of the “political

thicket.” Such a result is one the Court should accept only if

the Constitution demands it, and the Constitution does not.

ARGUMENT

I. STATE LEGISLATURES HAVE CONSTITUTIONAL

AUTHORITY TO REDISTRICT MORE THAN ONCE

PER DECADE.

The U.S. Constitution vests the power to draw

congressional district boundaries “in each state by the

legislature thereof,” subject to such regulations as Congress

may enact. U.S. CONST. art. I, § 4; Smiley o. Holm, 285 U.S.

355, 366-67 (1932). That authority is unqualified as to

frequency; one would search the Constitution in vain for any

constitutional provision that prevents the state legislatures

from exercising this authority more than once per decade.

Similarly, though Congress has exercised its power to

regulate congressional districting in certain respects, see 2

USC. §§ 2a & 2c (2005), it has not limited redistricting to

once-per-decade.?

There is no authority supporting an interpretation of

Article I, § 4 as imposing a “once-per-decade” rule. This

Court has never done so. It has established that redistricting

- immediately following each decennial Census is the

minimum constitutional requirement. See Wesberry v.

Sanders, 376 U.S. 1 (1964) (overturning Georgia’s 1931

congressional redistricting plan that was malapportioned

based on 1960 census data); Reynolds v. Sims, 377 U.S. 533

(1964). In Reynolds v. Sims, this Court held that failure to

redistrict at least once every ten years “would assuredly be

constitutionally suspect.” Id. at 583-84. It further held that

decennial redistricting “would clearly meet the minimal

? Several Appellants in this case contended otherwise in the

district court, but that court properly rejected such claims, noting, “It

would have been remarkably easy for Congress to impose such a

limitation in the text of § 2c, but it did not.” Session v. Perry, 298 F.

Supp. 2d 451, 465 (E.D. Tex. 2004) (three-judge court). No Appellant

(or amicus) has reargued in this Court that a statutory basis exists for

the alleged “once-per-decade” rule.

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requirements for maintaining a reasonably current scheme of

legislative representation.” Id. (emphasis added). The Court

also noted with apparent approval, however, that “the

constitutions of seven States either require or permit

reapportionment more frequently than every 10 years,” id. at

583 n.65, and it disclaimed the notion that redistricting more

than once in a decade is unconstitutional, stating, “[W]e do

not mean to intimate that more frequent reapportionment would

not be constitutionally permissible or practicably desirable.” Id. at

583-84 (emphasis added); see also Whitcomb v. Chavis, 403 U.S.

124, 163 n.43 (1971) (quoting Reynolds) 3

Federal courts have universally applied Reynolds v. Sims

as imposing only the constitutional minimum for the

frequency of redistricting in the context of both legislative

and congressional redistricting. These courts have also

recognized that more frequent redistricting is permissible

and perhaps desirable. See, e.g., Daly v. Hunt, 93 F.3d 1212,

1228 n15 (4th Cir. 1996) (noting, in challenge to

congressional district plan, this Court’s statement in

Reynolds that “more frequent reapportionment might be

‘practicably desirable.’”); Johnson v. Mortham, 926 F. Supp.

1460, 1494 (N.D. Fla. 1996) (“Johnson II”) (three-judge panel)

> A substantial majority of this Court in Vieth v. Jubelirer, 541 U.S.

267 (2004), seems to have assumed that congressional redistricting

more than once per decade occurs as a matter of course. In dissent,

Justice Breyer argued for a measure of impermissible partisan

gerrymandering based upon a range of factors, including, most

prominently, the presence of mid-cycle redistricting. Id. at 365-67

(Breyer, J., dissenting). This proposed standard was rejected outright

by five Justices of this Court. Id. at 541 U.S. at 299 (plurality opinion),

308 (Kennedy, J., concurring in judgment) (rejecting “the standards

proposed...by our dissenting colleagues....”), 317 (Kennedy, J.,

concurring in judgment). No other Justice endorsed it, nor did any

other Justice question the practice of more than one redistricting in a

decade. See id. at 317-42 (Stevens, J., dissenting) & 342-55 (Souter, J.,

dissenting).

(noting in challenge to congressional districting, “Since —

decennial redistricting is the constitutional minimum

required, a state is free to adopt new redistricting plans in

between regularly scheduled decennial reapportionments.”),

aff d sub nom., Johnson v. Smith, 132 F.3d 1460 (11th Cir. 1997);

Klahr v. Williams, 339 F. Supp. 922, 925 (D. Ariz. 1972) (three-

judge panel) (holding, in challenge to both congressional

and state legislative districts, “Obviously, we could not but

approve a plan which the Arizona Legislature might adopt

providing districting and apportionment based upon

dependable population figures to be carried out more

frequently than every ten years; but that we cannot require

the Legislature to do so clearly appears from” Reynolds); see

also Garza v. County of Los Angeles, 918 F.2d 763, 772 (9th Cir.

1990), cert. denied, 498 U.S. 1028 (1991) (“Reynolds did not

institute a constitutional maximum frequency for

reapportionment; rather, it set a floor below which such

frequency may not constitutionally fall.”); French v. Boner,

786 F. Supp. 1328, 1331 n.4 (M.D. Tenn. 1992) (“Legislative

reapportionment more frequently than every ten years,

although not required, is permissible. Reynolds, 377 U.S. at

583-84....”); Buckley v. Hoff, 243 F. Supp. 873, 878 (D. Vt.

1965) (three-judge panel) (“All the parties apparently also

concede that reapportionment ... of the [Vermont State]

House of Representatives every eight years ... is in full

accord with the Equal Protection Clause. We again agree.”).

No state’s supreme court has ever found a “once-per-

decade” limitation buried in the language of Article 1, § 4.

State supreme courts that invalidated a subsequent

redistricting after the first post-census plan was enacted,

have all done so based solely on unique state law provisions,

rather than federal law. See, e.g., People ex rel. Salazar v.

Davidson, 79 P.3d 1221 (Colo. 2003), cert. denied sub nom.,

Colo. Gen. Assembly v. Salazar, 541 U.S. 1093 (2004); Legislature

v. Deukmejian, 669 P.2d 17, 23 (Cal. 1983) (collecting cases);

Harris v. Shanahan, 387 P.2d 771 (Kan. 1963); Jones v. Freeman,

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146 P.2d 564 (Okla. 1943); People ex rel. Mooney v. Hutchinson,

50 N.E. 599 (Ill. 1898); Harmison v. Ballot Comm'rs, 31 S.E. 394

(W. Va. 1898).

Furthermore, a number of states have adopted explicit

state constitutional oor statutory rules prohibiting

congressional redistricting after the first mandatory post-

Census plan. See ARIZ. CONST. art. IV, pt. 2, § 1; CONN.

CONST. art. III, § 6; HAW. CONST. art. IV, §§ 1, 2; MONT.

CONST. art. V, § 14; Idaho Code § 72-1501 (2005); 21 Maine

Rev. Stat. Ann. § 1206 (2005); N.J. Stat. § 19:46-12 (2005);

Tenn. Code Ann. § 2-16-102 (2005); Wash. Rev. Code §§

44.05.030 & 44.05.110 (2005). Of course, had the US.

Constitution been understood to preclude redistricting more

than once a decade, these enactments would have been

unnecessary. By the same token, if Congress wished to

impose a once-a-decade rule for congressional districting,

Article I, § 4, plainly authorizes it, but Congress has not

chosen to do so.4

The understanding of Article I, § 4 evidenced by the

foregoing authorities is consistent with the historical record

of the founding era. For example, the experience of New

Jersey in the years immediately following the Constitution’s

adoption betrayed no hint of an understanding that the

Constitution limited the frequency with which legislatures

might change congressional electoral systems. Within the

space of 15 years, from 1798 to 1813, for purely partisan

reasons, the New Jersey legislature switched four times from

at-large to district-based congressional elections, with one

‘ Of course, if the U.S. Constitution had ever been understood to

preclude redistricting more than once in a decade, congressional

action would be unnecessary as well. Nevertheless, there are

currently three separate bills pending before Congress that would

expressly prohibit redistricting after a valid post-census plan is

enacted. See H.R. 4094, 109th Cong. § 2 (2005) (Rep. Lofgren); H.R.

2642, 109th Cong. § 2 (2005) (Rep. Tanner); H.R. 830, 109th Cong. § 1

(2005) (Rep. Waters).

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switch to at-large elections taking place just days before the

1800 election. Rosemarie Zagarri, THE POLITICS OF SIZE:

REPRESENTATION IN THE UNITED STATES, 1776-1850 (Cornell

1987), at 115-17. And one‘New York assemblyman objected

to district-based elections in the year following the

Constitution’s adoption on the ground that the principle of

population equality would “render it necessary to pass a

new bill every year or two; our election law, therefore, could

only be a temporary one.” Id. at 120-21 (quoting Daily

Advertiser, Dec. 19, 1778).

These voluminous authorities demonstrate, that there is

no constitutional basis for morphing Article I, § 4’s minimum

requirement of redistricting once per decade into the

constitutional maximum as well.

Il. ENSHRINING A “ONCE-PER-DECADE” RULE INTO

THE CONSTITUTION TO LOCK-IN A FEDERAL

COURT-DRAWN PLAN WOULD DISPLACE STATES

FROM THEIR CONSTITUTIONAL ROLE UNDER

ARTICLE I, § 4.

The enunciation of a “once-per-decade” rule in this case

would unnecessarily cement in place a congressional

redistricting plan drawn by a federal district court, and

severely transgress the long-recognized authority of state

legislatures, and, as needed, state courts, to draw

redistricting plans. This Court has repeatedly held that, “the

Constitution leaves the States primary responsibility for

apportionment of their federal congressional ... districts.”

Growe v. Emison, 507 U.S. 25, 34 (1993); see also Branch ov.

Smith, 538 U.S. 254, 261 (2003) (“[Redistricting] is primarily

the duty and responsibility of the State through its

legislature.”); Chapman v. Meier, 420 U.S. 1, 27 (1975) (“We

say once again what has been said on many occasions:

reapportionment is primarily the duty and responsibility of

the State through its legislature or other body, rather than of

a federal court.”). The deference mandated by these

9

precedents extend to redistricting plans crafted by state

courts as well. Growe, 507 U.S. at 34 (citing Scott 0. Germano,

381 U.S. 407 (1965); Chapman, 420 U.S. at 27.)

The Constitution requires deference to the States. A

district court is precluded by the principle of separation of

powers from usurping a state legislature’s authority to

adopt a constitutional redistricting plan, except in narrowly

defined circumstances. Separation of powers does not arise

from any provision of the Constitution, but exists because

“behind the words of the constitutional provisions are

postulates which limit and control.” Principality of Monaco v.

Mississippi, 292 U.S. 313, 323 (1934). Under the doctrine of

separation of powers, government is composed of three

separate but coequal branches. Consequently, unless

otherwise expressly provided or incidental to the powers

conferred, ... the judiciary cannot exercise either executive

or legislative power.” Springer v. Phillipine Islands, 277 U.S.

189, 201-202 (1928). Deference to legislative redistricting

enactments, based upon the doctrine of the separation of

powers, has been exercised in cases ranging from

congressional redistricting to the apportionment of local

parish councils. Upham v. Seamon, 456 U.S. 37 (1982);

Grisbaum v. McKeithen, 336 F. Supp. 267 (E.D. La. 1971).

The express grant to the States in Article 1, § 4 of the

power to draw congressional district lines also implicates

principles of federalism. Federalism is based upon the belief

that a diffusion of power between two governments, federal

and state, will enhance the freedom of the people. See

Gregory v. Ashcroft, 501 U.S. 452, 458-59 (1991); see also New

York v. United States, 505 U.S. 144 (1992) (“The Constitution

divides authority between federal and state governments for

the protection of individuals. State sovereignty is not just an

end in itself; ‘Rather, federalism secures to citizens the

liberties that derive from the diffusion of sovereign power.”

(quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991)

(Blackmun, J., dissenting)). Johnson II, 926 F. Supp. at 1494

10

n.72 (“we cannot deny the Florida Legislature the first

opportunity to adopt a new redistricting plan. Not only is it

required under existing constitutional law and the doctrines

of federalism and separation of powers, but to do otherwise

would encourage the very type of judicial activism in the

political process that this Court has a duty to avoid.”).

There are practical reasons for the delegation of this

responsibility to the States:

[A] state legislature is the institution that is by far the

best situated to identify and then reconcile

traditional state policies within the constitutionally

mandated framework of substantial population

equality. The federal courts by contrast possess no

distinctive mandate to compromise sometimes

conflicting state apportionment policies in the

people’s name.

Connor v. Finch, 431 U.S. 407, 414-15 (1977); Upham, 456 U.S.

at 43-44 (quoting Connor in the context of congressional

redistricting); see Vera v. Bush, 933 F. Supp. 1341, 1344 (S.D.

Tex. 1996) (“Vera I”) (following affirmance in Bush v. Vera,

517 U.S. 952 (1996), district court opinion about remedy for

unconstitutional congressional districts).5

5 For a discussion of various competing factors and interests

(besides partisanship) that legislatures are best equipped to consider

as part of the redistricting process, including, inter alia, compactness,

contiguity, preservation of political subdivisions, concerns voiced by

the public, concerns voiced by organized groups, whether and how to

maintain continuity in the delegation so that the state may still have

access to federal largesse and have better influence on legislation, and

competing communities of interest, see Clark Benson, Substantial

Political Consequences, A Practitioner's Perspective on Redistricting,

EXTENSIONS (Carl Albert Congressional Stud. & Research Ctr. Fall

2004), at http: / /www.ou.edu/special /albertctr /extensions/

fall2004/Bensen.html. See also Georgia v. Ashcroft, 539 U.S. 461, 483-84

(2003) (“the State’s choice [whether to use influence or coalitional

districts in avoiding retrogression under Voting Rights Act § 5]

11

In the face of the Constitution’s express grant of

redistricting power to the States, and the principles of

separation of powers and federalism, the federal courts’ role

is necessarily a limited one. They are called upon to take up

the unwelcome task of redistricting only when a state

legislature fails to emact a plan that meets federal

constitutional or statutory requirements, or fails to redistrict

in a timely manner. Reynolds, 377 US. at 586

(“...[RJeapportionment is primarily a matter for legislative

consideration and determination, and ... judicial relief

becomes appropriate only when a legislature fails to

reapportion according to federal constitutional requisites in

a timely fashion after having had an adequate opportunity

to do so.”); Growe, 507 U.S. at 34 (“Absent evidence that

these state branches will fail timely to perform that

[redistricting duty], a federal court must neither

affirmatively obstruct state reapportionment nor permit

federal litigation to be used to impede it.”); Upham, 456 U.S.

at 41-42 ("From the beginning, we have récognized that

‘reapportionment is primarily a matter for legislative

consideration and determination, and that judicial relief

becomes appropriate only when a legislature fails to

reapportion according to federal constitutional requisites in

ultimately may rest on a political choice of whether substantive or

descriptive representation is preferable.”); Gonzalez v. Monterey

County, 808 F. Supp. 727, 733-34 (N.D. Cal. 1992) (“In delaying the

election, foremost in the court's mind is the Supreme Court's

observation that a ‘legislature is . . . by far the best situated to identify

and then reconcile traditional state policies within the constitutionally

mandated framework of substantial population equality.’ ... [{] ... The

~ Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution dictates that redistricting plans achieve fair

representation for all citizens. [Citation] On the other hand,

California recognizes the importance of ‘(a) topography, (b)

geography, (c) cohesiveness, contiguity, integrity, and compactness of

territory, and (d) community of interests’ in drawing legislative

districts.”).

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a timely fashion after having had an adequate opportunity

to do so.’ ... In fashioning a reapportionment plan or in

choosing among plans, a district court should not pre-empt

the legislative task nor ‘intrude upon state policy any more

than necessary.’” (quoting White v. Weiser, 412 U.S. 783, 794-

95 (1973))).

Moreover, even in circumstances where a legislature’s

plan is determined to be infirm, the rule is that a federal

court must accord the legislature a reasonable opportunity

to remedy the defect before a judicial plan is imposed. Wise

v. Lipscomb, 437 U.S. 535, 540 (1978) (“When a federal court

declares an existing apportionment scheme unconstitutional,

it is therefore, appropriate, whenever practicable, to afford a

reasonable opportunity for the legislature to meet

constitutional requirements by adopting a substitute

measure rather than for the federal court to devise and order

into effect its own plan.”); Vera I, 933 F. Supp. at 1345-46.

A state legislature is not deposed from its redistricting

role for an entire decade either because it failed, for

whatever reason, to enact a new plan in timely fashion after

the Census data were-released, or because it was unable to

enact a remedial plan when given an opportunity to do so. A

contrary rule would overrule decades of federal court

precedent heeding this Court’s admonition to defer to the

States to redistrict. See Session v. Perry, 298 F. Supp. 2d at 460

n.14 (citing numerous cases).

Federal courts imposing remedial congressional district

plans have routinely designated them “interim” plans and

indicated their expectation that the plans would (or should)

be replaced with appropriate legislatively-drawn plans. See

id; see also Colleton County Council v. McConnell, 201 F. Supp.

2d 618, 670-71 (D.S.C. 2002) (future elections to be conducted

according to court-drawn congressional plans “unless and

until the South Carolina General Assembly...ends its current

impasse and enacts an alternative redistricting plan for the

legislative body at issue”); Vera v. Bush, 980 F. Supp. 251, 253

13

— lO

(S.D. Tex. 1997) (“Vera II”) (“Because the legislature has

failed to act, this Court is left with the ‘unwelcome

obligation’ of providing a congressional redistricting plan

for the 1998 and millennial election cycles pending. later

legislative action.” (emphasis added)); Johnson v. Mortham, 915

F. Supp. 1529, 1544 (N.D. Fla. 1995) (“Johnson I”) (revising

prior injunction to clarify that court-drawn congressional

plan not “permanent,” i.e., effective until the next census,

because “the law is clear that a state legislature always has

the authority to redistrict or reapportion, subject to

constitutional constraints.”); Vera I, 933 F. Supp. at 1346

(“[T]his Court’s remedy is an interim plan and the Court

will require the legislature to prepare its own constitutional

redistricting plan next year.”); Burton ex rel. Republican Party

v. Sheehan, 793 F. Supp. 1329, 1369 (D.S.C.) (“It is our hope

that the General Assembly and the Governor will work

together and fashion acceptable plans. In the interim, [this is]

the plan{] for the...United States Congressional districts.”),

vac’d on other grounds sub nom., Statewide Reapportionment

Advisory Comm. 0. Theodore, 506 U.S. 951 (1992); Jordan ov.

Winter, 604 F. Supp. 807, 809 (N.D. Miss. 1984) (imposing, at

plaintiffs’ request, a “court-ordered interim plan for the 1982

congressional elections and thereafter until changed by law.”

(emphasis added)). Thus, the district court below is merely

the latest in a long line of federal courts to have recognized,

relying on Reynolds, the authority of state legislatures to

redistrict as frequently as they deem it to be “practicably

desirable.” Reynolds, 377 U.S. at 584; see Henderson v. Perry,

399 F. Supp. 2d 756, 2005 U.S. Dist. LEXIS 38273, *64 n.85

(E.D. Tex. 2005) (three-judge court).

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Ill. LIMITING REDISTRICTING TO ONCE PER

DECADE IS AT LEAST AS LIKELY TO ENTRENCH

PARTISAN GERRYMANDERING AS TO

DISCOURAGE IT.

A. Prohibiting Redistricting More Than Once Per

Decade Would Deprive States Of An Important

Tool For Combating Egregious Gerrymanders.

Perhaps the foremost irony of this case is that, if the

Court were to strip the Texas Legislature of its ability to

replace the federal-court drawn plan, it would thereby have the

direct effect of locking in an admitted partisan gerrymander. As

the district court explained below, “The State’s description

of the 2003 Texas legislative plan as dismantling a prior

partisan gerrymander that had entrenched a minority party,

in order to allow a party with overwhelming statewide

voting strength to capture two-thirds of Texas’s

congressional delegation, is a characterization that the

record supports.” Henderson, 399 F. Supp. 2d at __, 2005 U.S.

Dist. LEXIS 38273, at *44. The district court further

elaborated,

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. ... [{]

15

... The map drawn by this court in 2001 perpetuated

much of this gerrymander.

Id. at *37-*38 (emphasis added; footnotes omitted); see also id.

at “37 n.47 (Texas Democratic plan the “shrewdest

gerrymander of the 1990s” (quoting Michael Barone, THE

ALMANAC OF AM. POLITICS 2002, at 1448 (2001))).

Teasing a once-per-decade rule out of Article I, § 4,

would eliminate an important political remedy against a

post-census gerrymander, namely subsequent legislative

actions designed to undo the gerrymander’s deleterious

effects.

Perhaps the most widely-documented example of this

effect is the California Supreme Court’s adoption of a once-

per-decade rule in 1983, applicable to both the Legislature

and the people acting through the initiative. Legislature of the

State of Cal. v. Deukmejian, 669 P.2d 17 (Cal. 1983). Following

the 1980 Census, Democratic majorities controlled the

California Legislature. Badham v. Eu, 694 F. Supp. 664, 666

(N.D. Cal. 1988). In 1981, voting along party lines, the

Legislature adopted a new plan for congressional and

legislative districts. Id. That plan, authored by the late

Congressman Philip Burton and dubbed by pundits the

“Burtonmander,” was “considered one of the most

notoriously partisan gerrymanders in recent years.” Richard

H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre

Districts,” and Voting Rights: Evaluating Election-District

Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 573

(1993); John H. Fund, Beware the Gerrymander, My Son, NAT'L

REV., Apr. 7, 1989, at 34.

California voters promptly qualified a referendum to

rescind the “Burtonmander,” which the Democratic State

Assembly challenged in California’s courts. The state

Supreme Court upheld the referendum, but ordered the

Burton plan to be used for the 1982 congressional and

legislative elections. Assembly v. Deukmejian, 639 P.2d 939

(Cal. 1982); Fund, supra, at 34. Consequently, though

16

California’s voters “overwhelmingly rejected” the Burton ©

plan at the June 1982 primary, Democrats made significant

gains in the Legislature and in the congressional delegation

that November. Legislature v. Deukmejian, 669 P.2d at 684

(Richardson, J., dissenting); Badham, 694 F. Supp. at 666;

Fund, supra, at 34.

Despite the voters’ disapproval of the Burtonmander, at

an extraordinary session that fall the Legislature adopted a

new plan—dubbed “Son of Burton”—making only minor

changes to the rejected gerrymander, and locking in the new

Democratic gains; it was signed by outgoing Governor

Brown just hours before the new Republican Governor,

George Deukmejian, was sworn into office. Fund, supra, at

35; Badham, 694 F. Supp. at 666. The Legislature designated

the new plan “urgency” legislation, precluding further use

of the referendum power. Legislature v. Deukmejian, 669 P.2d

at 684 (Richardson, J., dissenting).

California voters reacted again, promptly qualifying an

initiative that would have repealed the “Son of Burton”

plan, and replaced it with a new plan thought to embody

“good government” principles. Id.; Fund, supra, at 35. In

another legal challenge by the Democratic Legislature, the

California Supreme Court prohibited a vote on the initiative,

holding that under California’s Constitution a _ valid

redistricting could only be enacted, whether by the

Legislature or by initiative, once per decade, and “Son of

Burton” was that plan. Id. at 22-31 (majority opinion). The

effect was predictable: The following year, Republicans

received an absolute majority (50.1%) of the congressional

vote statewide, but only 40% of the state’s congressional

seats. Badham, 694 F. Supp. at 670. A similar disparity

prevailed throughout the decade. Fund, supra, at 34.

Consequently, the adoption of California’s once-per-decade

rule locked in an acknowledged partisan gerrymander. The

adoption of such a rule in this case would do the same.

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B. A “Once-Per-Decade” Rule Would Also Stymie

Redistricting Reform Efforts By Voters Themselves.

More recently, movements to reform redistricting have

sprung up across the nation in response to perceived

redistricting abuses after the 2000 Census, including in

California (again), Ohio, Michigan, Florida, Georgia,

Maryland, Massachusetts, and Rhode Island. See Adam

Nagourney, States See Growing Campaign for New Redistricting

Laws, N.Y. TIMES, Feb. 7, 2004, at Al. A number of these

reform efforts are incorporated in initiative proposals and

include provisions to replace existing post-2000 redistricting

plans with new plans during the decade. Yet a rule

interpreting the federal Constitution as prohibiting

redistricting more than once per decade would also apply to

the people exercising their reserved legislative power®, and

would threaten to stymie such reform efforts, again locking

in the alleged existing gerrymanders.

For example, 2005 witnessed renewed efforts in

California to reform the redistricting process by means of

direct democracy. Douglas Johnson, et al., RESTORING THE

COMPETITIVE EDGE: CALIFORNIA’S NEED FOR REDISTRICTING

REFORM AND THE LIKELY IMPACT OF PROPOSITION 77, at 16

(Rose Institute 2005), at http:/ /rose.claremontmckenna.

© See Ohio ex rel. Davis v. Hildebrandt, 241 U.S. 565 (1916)

(redistricting by the “legislature” includes the people acting by direct

democracy, because they exercise part of the state’s legislative power);

see also Smiley v. Holm, 285 U.S. at 355 (redistricting by the

“legislature” includes the law-making power as defined by the State’s

constitution, including Governor’s veto power). Furthermore, this

Court has held that “the voters may no more violate the Constitution

by enacting a ballot measure than a legislative body may do so by

enacting legislation.” Citizens Against Rent Control v. City of Berkeley,

454 US. 290, 295 (1981); Buckley v. Am. Constitutional Law Found., 525

U.S. 182, 194 (1999).

18

edu/redistricting/redistricting.asp. Voters qualified an

initiative measure, Proposition 77, which would have

amended the State’s constitution to require an independent

commission to conduct all future redistrictings of state

legislative and congressional districts. It would have also

required the commission to adopt a redistricting plan to

replace the perceived bipartisan gerrymander enacted in

2001 by the Legislature. These efforts were endorsed by

good-government groups including Common Cause, and all

of the State’s major newspapers. See Editorial, Our Election

Guide, L.A. TIMES, Nov. 8, 2005, at B12; Common Cause, Two

Other Groups Back Redistricting Measure, ASSOC. PRESS, Oct. 5,

2005 (On Lexis-Nexis); Paul Thornton, Editorials Elsewhere:

Endorsements Elsewhere, L.A. TIMES, Nov. 8, 2005, at B12.

Likewise, in Ohio an initiative was recently qualified to ~

implement redistricting by commission, which also would

have replaced the current congressional plan, believed to be

a gerrymander, with a new plan. That measure was also

backed by good government groups including Common

Cause. See Dean E. Murphy, Ohio Critics of G.O.P. Start Battle

to Change Election Process, N.Y. TIMES, Aug. 10, 2005, at A12;

Dean E. Murphy, Schwarzenegger Enters Debate Over

Redistricting In Ohio, N.Y. TIMES, Oct. 17, 2005, at A22.

Similar retorm efforts are also underway in Michigan

and Florida and include new redistricting to undo perceived

gerrymanders in those states. Editorial, Districts, LANSING

ST. J., Apr. 6, 2005, at 6A. See Fla. Dept. of State, Div. of Elec.,

IMPLEMENTATION OF APPORTIONMENT & DISTRICTING

COMM’N NO. 05-16, at http://election.dos.state-fl.us/

initiatives /initdetail.asp?account=41643&seqnum=3.

This Court should not adopt a rule prohibiting

redistricting more than once in a decade. Such a rule not

only would insulate post-census gerrymanders from

. subsequent political remedies, but also would jeopardize

popular reform efforts like those detailed above. What's

more, it would also frustrate the opportunity for voters to

19

attempt to overturn a gerrymander by electing new

officeholders who might take on the task, because that task

would be foreclosed by the once-per-decade rule.

IV.A PROHIBITION ON REDISTRICTING MORE

THAN ONCE IN A DECADE WOULD RESULT IN A

MULTIPLICITY OF POST-CENSUS PARTISAN

GERRYMANDER SUITS AND WOULD INCREASE

THE DEMAND FOR COURT-DRAWN PLANS.

In defending the overall justiciability of partisan

gerrymandering claims in. Vieth, Justice Breyer noted in

dissent that “[c]ourts need not intervene often to prevent the

kind of abuse I have described, because those harmed

constitute a political majority, and a majority normally can

work its political will” 541 US. at 362 (Breyer, J.,

dissenting). He premised this observation on the existence

of numerous political remedies available to “undo the harm

that districting has caused the majority’s party, in the next

round of districting if not sooner.” Id. (emphasis added). If

this Court adopts a prohibition on redistricting more than

once in a decade, however, courts will be forced to intervene

more frequently, because interim political solutions will be

precluded. Indeed, such a prohibition would significantly

increase the burdens on the judiciary in two ways.

First, such a rule will mean that courts will increasingly

be compelled to accept the “unwelcome obligation” of

drawing plans in the first instance. Connor v. Finch, 431 U.S.

at 415. The party whose legislative members are likely to

lose out in post-census redistricting will have every

incentive to stall in an effort to force the process into the

courts instead, hoping to fare better in the judicial arena

than in the political, and knowing that a court plan would

foreclose any subsequent plans by the political branches.

Second, in those states where legislative districting does

take place, a prohibition on subsequent redistricting would

almost surely result in a greater number of post-census

20

partisan gerrymandering claims. Litigation will be the only

remedy for those aggrieved by perceived gerrymanders

because political remedies will have been precluded by this

Court. See Badham, 694 F. Supp. at 666-67 (deciding partisan

gerrymandering challenge to “Son of Burton” plan after Cal.

Supreme Court enunciated state “once-per-decade” rule).

Increasing the frequency with which redistricting will

default to the federal courts is inconsistent with this Court's

precedents. Those precedents have sought to prevent

federal courts from becoming “bogged down in a.vast,

intractable apportionment slough, particularly when there is

little, if anything, to be accomplished by doing so.” Gaffney

v. Cummings, 412 U.S. 735, 749-50 (1973). Thus, the Court

has sought to avoid standards that would draw the judiciary

so decisively into the political redistricting bog, and has

held, in the context of congressional reapportionment, that

courts “should not ... ‘intrude upon state policy any more

than necessary.” White v. Weiser, 412 U.S. at 795 (quoting

Whitcomb v. Chavis, 403 U.S. at 160). Consistent with this

principle, the Court held in Gaffney that it would not

mak{e] the standards of reapportionment 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 or

accept those made by reapportionment plaintiffs

who may have wholly different goals from those

embodied in the official plan.....

Id. at 749-50.

Similarly, in Davis v. Bandemer, the Court was careful not

to adopt too lenient a test for identifying unconstitutional

partisan gerrymanders, noting,

Inviting attack on minor departures from some

supposed norm would too much embroil the judiciary

in second-guessing what has consistently been

21

referred to as a political task for the legislature, a task

that should not be monitored too closely unless the

express or tacit goal is to effect its removal from

legislative halls. We decline to take a major step toward

that end, which would be so much at odds with our history

and experience.

478 U.S. 109, 133-34 (1986) (emphasis added); see also Vieth,

541 U.S. at 300 (plurality opinion) (“Is the regular insertion

of the judiciary into districting, with the delay and

uncertainty that brings to the political process and the

partisan enmity it brings upon the courts, worth the benefit

to be achieved...? We think not.”).

An increase in court-drawn plans and judicial “second-

guessing” of legislatively-drawn plans would be the

inevitable impact of a prohibition on redistricting more than

once in a decade. These are results to be avoided, if possible,

in the absence of a clear constitutional mandate to the

contrary—a mandate that is lacking here.

CONCLUSION

For the foregoing reasons, the judgment of the district

_ court should be affirmed.

Respectfully submitted,

MARGUERITE MARY LEONI, ESQ.

Counsel of Record for Amicus Curiae

CHRISTOPHER E. SKINNELL, ESQ.

NIELSEN, MERKSAMER,

PARRINELLO, MUELLER & NAYLOR

591 Redwood Highway, Suite 4000

Mill Valley, California 94941

Phone: (415) 389-6800

Attorneys for Amicus Curiae

American Legislative Exchange Council

& The Free Enterprise Coalition

February 1, 2006

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.

&

TRAVIS COUNTY, TEXAS, et al.

&

JACKSON, EDDIE, et al.

&

GI FORUM OF TEXAS, et al.

Petitioners,

Vv.

PERRY, GOV. OF TEXAS, et al.

Defendant,

On Appeal from the United States District Court

for the Eastern District of Texas

MOFION- FOR bite+-F6-F ee

BRIEF FOR EDWARD BLUM, VISITING FELLOW AT

THE AMERICAN ENTERPRISE INSTITUTE, AND

ROGER CLEGG, PRESIDENT OF THE CENTER FOR

EQUAL OPPORTUNITY AS AMICI CURIAE

IN OPPOSITION TO APPELLANTS

FRANK M. REILLY *

MARC A. LEVIN ; Ps

PoTTS & RF'LLY, L.L.P.

401 West 15th Street, Suite 850

Austin, Texas 78701

(512) 469-7474

* Counsel of Record Counsel for Amicus Curiae

~ (202) 789-0096 — WASHINGTON, D.C. 20001

WILSON-EPES PRINTING CO., INC.

IN THE

Supreme Court of the Anited States

Nos. 05-204, 05-254, 05-276, 05-439

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.

&

TRAVIS COUNTY, TEXAS, et al.

&

JACKSON, EDDIE, et al.

&

GI FORUM OF TEXAS, et al.

Petitioners,

Vv.

PERRY, GOV. OF TEXAS, et al.

Defendant,

On Appeal from the United States District Court

for the Eastern District of Texas

MOTION FOR LEAVE TO FILE

AMICI CURIAE BRIEF

Amici Curiae, Edward Blum, Visiting Fellow at the Amer-

ican Enterprise Institute, and Roger Clegg, President of,

and on behalf of, the Center for Equal Opportunity, by and

through their counsel for this matter, Frank M. Reilly and

Marc A. Levin, Potts & Reilly, L.L.P., hereby move this

Honorable Court for an order permitting these parties to file a

Brief Amici Curiae in opposition to the Appellants.

In 2005, the Project on Fair Representation at the American

Enterprise Institute commissioned two social scientists to

gather data on the state of minority participation in the

election process. The Center for Equal Opportunity is the

only think tank devoted exclusively to the promotion of

colorblind equal opportunity and racial harmony. Blum and

Clegg have worked to advance race-neutral principles in the

areas of education, public contracting, public employment,

and voting. They have a substantial interest in limiting or

eliminating the use of race as a factor in redistricting and

respectfully submit this brief Amici Curiae in opposition to

Appellants in these cases

Therefore, these Amici hereby respectfully move this Court

for leave to file their A nici Brief as friends of the Court in

opposition to Appellants.

Respectfully submitted,

FRANK M. REILLY *

MARC A. LEVIN

POTTS & REILLY, L.L.P.

401 West 15th Street, Suite 850

Austin, Texas 78701

(512) 469-7474

* Counsel of Record Counsel for Amicus Curiae

TABLE OF CONTENTS

FUT cxscuinsscsevserastetinttiniienaipinenvszectsnvetntinanitvinia

A.

B.

No Constitutional Violation Due to Excessive

Partisanship or Timing of Plam..............:0ssseee0

Section 2 of the VRA Should be Interpreted to

Avoid Constitutional Questions................0s00

Court Should Reduce, Not Expand, the Use of

BRROD 1 FRRGIRIIONTINR, veccocccciccrcoccccsscnsecveccensecsovece

Factors Enumerated by Congress and the

Court Weigh Against Finding Violation of

DOCTOR 2 OE GO VERA censiccicrcvsccocncssenerenccctotceessess

Section 2 of the Voting Rights Act Provides

No Entitlement to the Creation or Maintenance

of Minority-Influence Districts...............:0seeee+

Section 2 Did Not Require Creation of Sev-

enth Hispanic-Majority District..............c0sesee

Redrawing of District 23 Did Not Constitute

Retrogression in Violation of Section 2 ............

Facts Do Not Support Shaw v. Reno Race-

based Gerrymandering Claim............csseseeseesees

CARIES ceviissneeitniisenntensventeubeboveieviiieenseinenenwets

(i)

1]

13

22

25

26

27

30

TABLE OF AUTHORITIES

CASES Page

Adarand Constructors v. Pena, 515 U.S. 200

(1995)... stateless ai llibeisatiai 1]

Arlington Heights v. Metropolitan Housing

Corp, GaP UB. BB CIS Fed ccececcniineacvncinciticitionin 27

City of Boerne v. Flores, 521 U.S. 507 (1997)...... 9

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

(plurality) ..........s00+« proceoveeseoseosenssesossnnrossenscsonsesnve 1]

City of Richmond yv. J.A. Croson Co., 488 U.S.

EF Ca icrcinstirencicwitiarainniciiastibiaiitiasihanlmiliinittaniatis 11

City of Rome v. U.S., 446 U.S. 156 (1980)............ |

Colleton County Council v. McConnell, 201 F.

Supp. 2d 618 (D.S.C. 2002).........csscessesseereeeeres 24

DeBartolo Corp. v. Fla. Gulf Coast Bldg. &

Constr. Trades Council, 485 U.S. 568 (1988)... 7

Del Rio v. Perry, No. GN-003665 (353rd Dist.

Ct., Travis County, Tex.) (2001) .....cccesessessesesees 22

Georgia v. Ashcroft, 539 U.S. 461 (2003)... 12, 26, 27, 30

Gratz v. Bollinger, 539 U.S. 244 (2003) ........000+ 11

Grutter v. Bollinger, 539 U.S. 306 (2003)............. ll

Hall v. Virginia, 385 F.3d 421, 430 (4th Cir. Va.

ID sciccscnssosnaheiinstebisiesiieliidedialaitapuliinbihiaiptil 24

Henderson v. Perry, 399 F.Supp.2d 756, 758

GED. FU, AN covsnerovecctincoenciniatngtacetereuntionbines 4,5

Hopwood v. Texas, 78 F.3d 932(Sth Cir. 1996) .... 19

Johnson v. DeGrandy, 512 U.S. 997 (1994) ......... 11, 12

Larios v. Cox, 542 U.S. 947 (2004)....cccsecsseseeeees 5

League of United Latin Am. Citizens, Council

No. 4434 v. Clements, 999 F.2d 831, 850(Sth

Co PCD CID GIT viicnsicnietineeiiniintpetininiidieadinatis 10

Lopez v. Monterey County, 525 U.S. 266 (1999).. 9, 10

Miller v. Johnson. 515 U.S. 900, 916 (1995) ........ 8

Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir.

ili

TABLE OF AUTHORITIES—Continued

Page

Oregon v. Mitchell, 400 U.S. 112 (1970)............. 9

Personnel Administrator of Mass. v. Feeney, 442

Se UD taitinitsenthsrrcaneenpmninmmentintetnctinene 27, 28

Podberesky v. Kirwan, 956 F.2d 52, 57 (4th

Cir.1992), cert. denied, 115 S.Ct. 2001 (1995)... 28

Rogers v. Lodge, 458 U.S. 613 (1982) ........-cccees0es 10

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

ITT ibunehs Athtinctettaiiesemtacsasinsnanendqnnentonegete 23, 24, 25, 26, 29

Shaw v. Reno, 509 U.S. 630 (1993)...........000 8, 27, 29, 30

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

Vieth v. Jubelirer, 541 U.S. 257 (2004)..........ccc000. 3

Voinovich v. Quilter, 507 U.S. 146 (1993)............ 23

Washington v. Davis, 426 U.S. 229 (1976)........... 27

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

I intl ste dieeacehieenreniedahinaemnmeguitinnstomttateetiensee I]

STATUTES, RULES, ETC.

S| SRR Ertl CeCe 5

U.S. CONST. art. 1, § 2, cl. 3; id. amend. XTV, § 2... 6

as PSD CID cccccicnccessnennasteenioseenecens l

OTHER AUTHORITIES

Axtman, Kris, Qué es esto: A Texas debate in

Spanish?, CHRISTIAN SCIENCE MONITOR,

a Td I tiacicinecieassateettnnicrentanerniainesetnsenectennes 20

Barone, Michael, Republican jujitsu against

liberals, U.S. NEws & WORLD REPORT, April

is TIO isla tia teniceiatiadiercentpadenpepenneseiatibbeninsetnensies 3

Barone, Michael, The Almanac of American

Politics 2004, (Nat’| Journal Group 2003)........ 4

Bishop, Bill, The Great Divide, AUSTIN AMER-

ICAN-STATESMAN, December 4, 2006 ............... 4

iv

TABLE OF AUTHORITIES—Continued

Blum, Edward & Abigail Thernstrom, Executive

Summary of the Bullock-Gaddie Assessment of

Voting Rights Progress in Texas, The Project

on Fair Representation, American Enterprise

Institute, January 6, 2006, available at

http://www.aei.org/doclib/20060106_VRATex

Bullock, Charles S. and Ronald Keith Gaddie,

Assessment of Voting Rights Progress in

Texas, The Project on Fair Representation,

American Enterprise Institute, January 6,

2006, available at http://www.aei.org/doclib/

Page

19

20060106_VRATexas. pdf ....cccccsssse» 15, 16, 19, 20, 22

Bybee, Keith J., Mistaken Identity: The Supreme

Court and the Politics of Minority Rep-

ag Te ee inicinitiicniniiiainiiiiniinianrapiintnsiaes

Chavez, Linda, OUT OF THE BARRIO ch. 2 (1991) ..

Congressman Al Green’s website, http://www.

house.gov/algreen/district.shtml ...........000000s0»

Elmendorf, Christopher S., Representation Rein-

forcement Through Advisory Commissions:

The Case of Election Law, 80 N.Y.U. L. REV.

1366, November 2008 ............ccscsssssssssesseessresenes

Hamilton, Kendra, A tale of three cities, BLACK

IsSUES HIGHER Epuc., Vol. 19, Issue 6, |

Saptemiver BG, DOGS ccccccssecsssscsssccssscccesenssnsvseeseees

Handbook of Texas Online, s.v. “Mexican

Texas”, available at http://www.tsha.utexas.

edu/ (visited January 15, 2006)................ccesee

THE HOTLINE, August 21, 1991 ........ccccccseserseeerrees

House vote on redistricting plan, AUSTIN

AMERICAN-STATESMAN, October 10, 2003........

13

19

22

Vv

TABLE OF AUTHCRITIES—Continued

H.R. 3112, 97th Cong., Ist Sess., 127 CONG.

REC. H1383 (daily ed. Apr. 7, 1981) ..............0.

Jalonick, Mary Clare, Accentuate the positive,

CAMPAIGNS & ELECTIONS, May 1, 2002...........

Kasindorf, Martin, Parties target Hispanics in 4

battleground states, USA TODAY, October 26,

Katz, Jonathan N., Report on Texas Congres-

sional Redistricting: Minority Opportunities

and Partisan Fairness, submitted in Del Rio v.

PPE, Sed hintossiciaibatiienisivatltainannitiiiveaniiitinsanes

Kennedy, John F., Radio and Television Report

to the American People on Civil Rights,

SUED BG, Wipe arcesnscnnncatietnhinincninccceniinntininames

Kiker, Douglas, Just the Ticket in Texas?, CBS

Eee

Mfume, Kweisi, 2002 NAACP Convention

Address in Houston, July 8, 2002 ..........s-c0000e+

Moscoso, Eunice, Bush Makes Gains With

Hispanic Men; Hispanic Southerners, Cox

News Service, December 22, 2004.................2..

National Annenberg Election Survey of 2000,

available at http://www.annenbergpublicpolicy

Nissimov, Ron, Ron Wilson: a man of

contradictions, controversy, HOUSTON CHRON-

SURE, SY BE, Bir cninaddebieatsnintennciecictenes

Perspective, ALBANY TIMES-UNION, September

ty BPO wencessuntupestaniinaneimeninstnineinpeiteeniinanteanseneees

Preston, Bryan, Red River Run, NATIONAL

en

Page

10

16

18

22

29

19

vi

TABLE OF AUTHORITIES—Continued

Ratcliffe, R.G., Texas Poll continues to predict

major victory for Bush, LAREDO MORNING

NEWS, November 1, 1998.............ssesssssssssessssees

Reeves, Stuart, Wentworth Proposes Special

Commission, THE DAILY TEXAN, June 26,

Rodriguez, Lori, Group hopes to mobilize

Houston's Hispanics to vote, HOUSTON

CHRONICLE, September 23, 2001 ...........0+0e0see0

Rodriguez, Lori, Shift Seen in Houston's

Hispanic Growth, HOUSTON CHRONICLE,

A ee ee

Shepard, Scott, Disharmony in Diversity:

Political Alliances Between Hispanics and

African-Americans are Rare In Dallas,

ATLANTA JOURNAL-CONSTITUTION, August

Fe, FEF cttccrmetiiiegaiientapmmanien

Texas Becomes Nation’s Newest “Majority-

Minority” State, Census Bureau Announces,

U.S. Census Bureau News Release, August 11,

SEI ccnccedtessccisaniccmaasinrnaet teiaiasaiismepiimaangeanttiatn

Texas Secretary of State, 2004 Election Results,

available at http://elections.sos.state.tx.us.........

Tilove, Jonathan, Census estimates forecast rise

of the Sun Belt Population, BALTIMORE SUN,

eee FD, Be ic cceicntitctipinsscctnacscsinsiaspanininineriins

Wilkie, Curtis, Texas Plays High-Stakes

Redistricting Game, THE BOSTON GLOBE, May

A ee ee

18

17

17

16

14

Vii

TABLE OF AUTHORITIES—Continued

Williams, John, Poll: White widening gap over

Sanchez, HOUSTON CHRONICLE, December 5,

Wolf, Richard, House Remapping Benefits

Minorities, Women and GOP, USA Topay,

IG, ree cncncsaneensnencminticipeicisentacveanpininennmennen

Zibel, Daniel A., Turning the Page on Section 5:

The Implications of Multiracial Coalition

Districts on Section 5 of the VRA, 103 MICH.

Be Os: RP cxnsecnensatndetnenninsitiiensennmmnnminbinnmannns

Page

17

Amici Curiae Edward Blum, Visiting Fellow at the

American Enterprise Institute, and Roger Clegg, President of,

and on behalf of, the Center for Equal Opportunity re-

spectfully submit this brief in opposition to the Appellants in

these cases.

INTEREST OF AMICI CURIAE

In 2005, the Project on Fair Representation at the American

Enterprise Institute commissioned two social scientists to

gather data on the state of minority participation in the

election process (cited at pp. 14-21 of this brief). The Center

for Equal Opportunity is the only think tank devoted

exclusively to the promotion of colorblind equal opportunity

and racial harmony. Blum and Clegg have worked to

advance race-neutral principles in the areas of education,

public contracting, public employment, and voting. They

have a substantial interest in limiting or eliminating the use of

race as a factor in redistricting and respectfully submit this

brief Amici Curiae in opposition to Appellants in these cases.

INTRODUCTION

John F. Kennedy stated “Race has no place in American

life or law.” Kennedy, John F., Radio and Television Report

to the American People on Civil Rights, June 11, 1963. It is

this goal that animated the Voting Rights Act (“VRA” or

“Act”) enacted two years later in 1965. Aiming to fulfill John

F. Kennedy’s clarion call for race neutrality in law and

Martin Luther King’s dream of a colorblind society, the Act

mandated, “No voting qualification or prerequisite to voting

or standard, practice, or procedure shall be imposed or

applied by any State or political subdivision” that denies or

abridges “the right of any citizen of the United S.ates to vote

on account of race or color. . .” 42 U.S.C. § 1973(a) (1982).

' No counsel for a party authored this brief in whole or in part, and no

person or entity, other than the amici curiae, has made a monetary

contribution to the preparation or submission of this brief.

2

The VRA sought to ensure race-neutral election proce-

dures, thereby undoing the vestiges of segregation and Jim

Crow. The YRA’s goal of promoting minority voter partici-

pation has been fulfilled in Texas, as minorities are voting in

high numbers and the state has elected numerous minority

officials. Yet, the Appellants ask this Court to make Texas the

vehicle for an unprecedented judicially-imposed expansion of

the use of race in redistricting. They contend, without support

in statute, case law, or legislative history, that Section 2 of the

VRA not only precludes retrogression in the number of

majority-minority districts, but also requires that any district

where minorities make the difference in electing a white

Democrat be etched in stone as a so-called minority-influence

district. This claim is strikingly inconsistent with Appellants’

attack on the Texas plan as excessively partisan. Appellants’

proposed requirement for devising and preserving minority-

influence districts employs race a tool for guaranteeing certain

partisan outcomes, conferring an entitlement on Anglo

Democrat incumbents elected with a decisive minority vote by

freezing their districts over time. To accede to this demand

would inject further partisanship into the redistricting process,

exceed the clear language and intent of the VRA, and violate

the Equal Protection clause by favoring the preferred outcomes

of some voters and politicians over others on the basis of race.

The only constitutional and justiciable standards for

redistricting require plans that: 1) satisfy the one person, one

vote guarantee through equipopulous districts; 2) do not

_ advantage or disadvantage voters on the basis of race. Be-

cause the 2003 Texas redistricting map at issue (Plan 1374C)

meets these criteria, it should be upheld.

ARGUMENT

A. NO CONSTITUTIONAL VIOLATION DUE TO EXCEs-

SIVE PARTISANSHIP OR TIMING OF PLAN

A majority of this Court has determined that either there

can be no standard for determining how much partisanship is