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

7

intended, the 2002 general elections for House seats were

the least competitive in United States history. Richard H.

Pildes, Foreword: The Constitutionalization of Democratic

Politics, in The Supreme Court, 2003 Term, 118 Harv. L.

Rev. 28, 62 (2004); see also Daniel R. Ortiz, Got Theory?, 153

U. Pa. L. Rev. 459, 477 (2004).

Finally, the dangers inherent in partisan gerrymander-

ing are particularly acute where, as in this case, a State en-

gages in mid-decade redistricting even though a lawful dis-

trict plan is already in effect. Until the mid-decade redis-

tricting at issue here, and recent mid-decade redistricting by

Colorado and Georgia, States normally drew new district

lines only once per decade after a new census was taken,

even though partisan considerations played a role in the

placement of those lines. Although such gerrymanders often

skew the first election after they are implemented, their ef-

fects tend to wane over the life of the ten-year cycle.’ A key

reason is that populations within a district, and the politics

of those populations, change unpredictably over time. See

Karcher v. Daggett, 462 U.S. 725, 732 (1983) (“(T}he well-

known restlessness of the American people means that

population counts for particular localities are outdated long

before they are completed.”). So long as redistricting is con-

ducted only once per decade, therefore, members of Con-

gress seeking to represent such districts have strong incen-

tives to accommodate those changes in their voting records.

See Adam Cox, Partisan Fairness and Redistricting Poli-

tics, 79 N.Y.U. L. Rev. 751, 771 (2004); see also People ex rel.

Salazar v. Davidson, 79 P.3d 1221, 1242 (Colo. 2003) (strik-

* See, e.g., Michael A. Carvin & 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, 10 (2005) (the effects of

partisan gerrymandering are “unlikely to last very long, much less the

entire decade until the post-census reapportionment”); Richard G. Niemi

& Laura R. Winsky, The Persistence of Partisan Redistricting Efforts in

Congressional Elections in the 1970s and 1980s, 54 J. Pol. 565, 571 (1992)

(summarizing studies demonstrating diminution of effect of partisan ger-

rymandering over the ten-year cycle).

8

ing down Colorado redistricting plan enacted in the middle

of a decade on state constitutional grounds).

The party in control of a state legislature can undermine

those incentives by redrawing district lines more often. See

Salazar, 79 P.3d at 1242 (if district lines changed more than

once a decade, “a congressperson would be torn between ef-

fectively representing the current constituents and currying

the favor of future constituents”). Start-of-decade

redistricting happens randomly from a _ political

perspective—that is, parties cannot choose to redistrict at

the moment when it helps them the most. But when States

reapportion districts more frequently, parties in power have

the means to lock in gains whenever possible. See id.; see

also Vieth, 541 U.S. at 364 (Breyer, J., dissenting). Of

course, this means that parties could—and, in most cases,

would—redistrict every time they regained control of state

legislatures, leading to greater polarization, less

compromise, and less responsiveness to the body politic.

II. CLAIMS THAT A STATE LEGISLATURE LACKED ANY NON-

PARTISAN BASIS FOR A ‘THRESHOLD DECISION TO

ENGAGE IN REDISTRICTING ARE JUSTICIABLE AND STATE

A CLEAR CONSTITUTIONAL VIOLATION

Despite their disagreements, all nine Justices in Vieth

agreed that, at some point, naked partisanship in redistrict-

ing decisions can so severely damage the integrity of the po-

litical process as to violate the Constitution. The plurality

acknowledged “the incompatibility of severe partisan ger-

rymanders with democratic principles” and agreed with Jus-

tice Kennedy and the dissenters that “an excessive injection

of politics is unlawful.” 541 U.S. at 292-293 (emphasis and

internal quotation marks omitted). The question here is

whether the courts can and should intervene to protect the

political process where a state government demonstrates no

neutral, non-partisan justification for a decision to engage in

redistricting in the first place. The answer is yes. Judicial

oversight of such a decision is plainly subject to judicially

discoverable and manageable standards, and indeed is criti-

cal to our democracy.

9

A. Appellants’ Excessive-Partisanship Claim Is Jus-

~ ticiable

The Vieth plurality concluded that all excessive-

partisanship challenges to a redistricting scheme are non-

justiciable under the political question doctrine on the the-

ory that they inevitably present “a lack of judicially discov-

erable and manageable standards.” 541 U.S. at 277-278 (plu-

rality opinion) (quoting Baker v. Carr, 369 US. 186, 217

(1962)). A majority of the Court, however, rejected that

conclusion. As Justice Kennedy observed: “If a State

passed an enactment that declared ‘All future apportion-

ment shall be drawn so as most to burden Party X’s rights to

fair and effective representation, though still in accord with

one-person, one-vote principles,’ we would surely conclude

the Constitution had been violated.” /d. at 312 (Kennedy, J.,

concurring in the judgment). “If that is so,” he added, “we

should admit the possibility remains that a legislature might

attempt to reach the same result without that express direc-

tive”—and that the courts would properly invalidate the en-

actment. Jd. Each of the four dissenting Justices likewise

affirmed that excessive-partisanship claims can be suscepti-

ble to judicially manageable rules. See id. at 323-325 (Ste-

vens, J., dissenting); id. at 343-344 (Souter, J., joined by

Ginsburg, J., dissenting); id. at 355 (Breyer, J., dissenting).

/ ~~ This case likewise presents basic questions about the

justiciability of excessive-partisanship challenges to redis-

tricting decisions. In one key respect, however, this case is

more obviously susceptible to judicial resolution. That is not

just because these plaintiffs claim that naked partisanship

formed the sole basis—rather than, as in Vieth, the “pre-

dominant” basis—of the State’s redistricting decision. See

J.S. 23-24. The reason, more fundamentally, is that the type

of electoral decision challenged here—a threshold decision to

redistrict at all—is more readily amenable to judicial scru-

* As used in this brief, “J.S.” and “J.S. App.” refer to the Jurisdic-

tional Statement and its Appendix in No. 05-276.

10

tiny than the precise details of where district lines should be

drawn once that decision has been made.

For present purposes, “excessive partisanship” chal-

lenges to redistricting decisions can be divided into two

broad categories. The first consists of challenges to a State’s

yes-or-no decision to engage in redistricting of any kind.

The second consists of challenges to the particulars of what-

ever new districting scheme a State adopts. We will call

these, respectively, “step one” and “step two” challenges.

Most excessive partisanship cases fall in the latter cate-

gory: they challenge the particulars of the lines drawn

rather than the threshold decision to redraw lines. Vieth

was such a case. The plurality concluded there that step two

challenges necessarily elude resolution through judicially

manageable rules because the details of district line-drawing

are subject to limitless variation and will inevitably reflect a

combination of many different considerations, some partisan

and some not. See, e.g., 541 U.S. at 290 (plurality opinion)

(analysis of excessive-partisanship challenges would “cast[]

{courts} forth upon a sea of imponderables”); see also id. at

285 (plurality opinion) (“Vague as the ‘predominant motiva-

tion’ test might be when used to evaluate single districts, it

all but evaporates when applied statewide.”).

Although the League disagrees with the plurality’s con-

clusion that step two challenges are inherently non-

justiciable, the Court need not revisit that issue here, for

this is a step one challenge. What appellants contest is not

the State’s choice of one among infinitely many districting

options, but the State’s threshold decision—one of two op-

tions in a binary choice—to conduct any redistricting at all

even though a valid districting scheme was already in place.

Appellants claim that the State, by its own admission, made

that threshold decision solely to disadvantage a disfavored

political association and not for any non-pretextual neutral

reason. That claim, which presents none of the line-drawing

details present in Vieth, is justiciable.

On the merits, appellants argue that partisan gain was

the State’s only objective in 2003 when it altered the lawful

11

districting plan adopted by the district court in 2001. As

they observe, the district court found in 2004 that “the sin-

gle-minded purpose of the Texas Legislature ... was to gain

partisan advantage” for one party at the expense of another.

J.S. App. 85a. In particular, “(t]he newly dominant Republi-

cans ... decided to redraw the state’s cungressional districts

solely for the purpose of seizing between five and seven

seats from Democratic incumbents.” Jd. at 88a-89a (empha-

sis added and alteration in original). Appellants further ar-

gue (J.S. 25-26) that this decision to maximize Republican

gains in 2003 cannot be justified as a neutral attempt to undo

an unlawful Democratic gerrymander in 1991. Cf. J.S. App.

20a-22a. They note that the intervening 2001 plan began, in

the words of the district court itself, with “a blank map of

Texas” (id. at 206a), produced a scheme that, as time eroded

the influence of incumbency, was “likely to produce a con-

gressional delegation roughly proportional to the party vot-

ing breakdown across the state” (id. at 209a), and “reflected

the growing strength of the Republican Party in Texas, with

20 of 32 seats offering ‘ a Republican advantage” (id. at 85a).

In any event, whether or not the Court accepts appellants’

factual allegations on these points, the allegations them-

selves plainly establish the justiciability of this case.

B. Appellants’ Excessive-Partisanship Claim States

A Constitutional Violation

Under any level of equal protection scrutiny, the gov-

ernment must articulate some neutral, non-pretextual objec-

tive for any decision it makes.’ Disadvantaging a disfavored

* See, e.g., Romer v. Evans, 517 U.S. 620, 623 (1996) (equal protection

clause “state[s] a commitment to the law’s neutrality”); Lehr v. Robertson,

463 U.S. 248, 265 (1983) (“The concept of equal justice under law requires

the State to govern impartially.”); New York City Transit Auth. v. Beazer,

440 U.S. 568, 587 (1979) (same); Kramer v. Union Free Sch. Dist. No. 15,

395 U.S. 621, 627-628 (1969) (“The presumption of constitutionality and

the approval given ‘rational’ classifications in other types of enactments

are based on an assumption that the institutions of state government are

structured so as to represent fairly all the people. However, when the

challenge to the statute is in effect a challenge of this basic assumption,

12

political group in the electoral process—or favoring a par-

ticular political group—is, by definition, not a neutral objec-

tive, and standing alone it cannot justify governmental ac-

tion. “(I]f the constitutional conception of ‘equal protection

of the laws’ means anything, it must at the very least mean

that a bare . . . desire to harm a politically unpopular group

cannot constitute a legitimate governmental interest.” Ro-

mer, 517 U.S. at 634-635 (quoting Department of Agric. v.

Moreno, 413 U.S. 528, 534 (1973)) (ellipsis and emphasis in

original); see also Vieth, 541 U.S. at 316 (Kennedy, J., con-

curring in the judgment). Indeed, as discussed in Part I, dis-

tricting decisions that reflect a bare desire to benefit one

party to the detriment of another are highly corrosive to our

democratic system and, in particular, to the unique constitu-

tional role assigned to the House of Representatives.

That said, the mere fact that some or all legislators har-

bored a partisan purpose is not enough to invalidate a deci-

sion to engage in redistricting. If, in the absence of partisan

objectives, a State would have engaged in redistricting any-

way for non-pretextual neutral reasons, the fact that the ma-

jority party favored redistricting for partisan advancement

as well would not necessarily invalidate the redistricting de-

cision at step one. A State might have any number of neu-

tral reasons for deciding to redistrict. For example, a State

may need to respond to a new census showing shifts in popu-

lation or altering the number of representatives. Or the

State may need to respond to a court order invalidating the

existing plan. In either case, a neutral rationale adequately

and independently justifies the threshold decision to engage

in redistricting, and that decision would almost certainly

survive step one scrutiny.

But partisan considerations do not themselves serve

any legitimate state interest and thus cannot by themselves

justify a decision to engage in redistricting. Such a decision

the assumption can no longer serve as the basis for presuming constitu-

tionality.” (footnote omitted)).

13

is therefore invalid if the State would not have made it but

for the partisan objective and if, as intended, it harms the

disfavored political party.° As the Vieth plurality recog-

nized, “an excessive injection of politics in redistricting is

unlawful.” 541 U.S. at 293. And no governmental action can

be more “excessively” partisan than one that would not have

been undertaken at all but for a desire to favor one political

association over another.

As discussed, enforcing the constitutional prohibition on

such governmental actions, particularly in the context of a

step one challenge, requires no recourse to judicially unman-

ageable rules. More generally, courts are uniquely compe-

tent institutions to adjudicate such matters. “(I]t has been

open to courts since the enactment of the Fourteenth

Amendment to determine, if on the particular facts they

must, that a discrimination reflects no policy, but simply ar-

bitrary and capricious action.” Baker, 369 U.S. at 226 (em-

phasis added). The fact that this dispute involves a chal-

lenge to a districting plan makes it, if anything, more appro-

priate for judicial resolution than many types of challenges

to substantive legislation unrelated to the electoral process.

“[VJoting cases ... involve rights (1) that are essential

to the democratic process and (2) whose dimensions cannot

safely be left to our elected representatives,” with their “ob-

vious vested interest[s].” John Hart Ely, Democracy and

Distrust 117 (1980). For that reason, it-is not only possible,

but essential, for the courts to craft judicially manageable

rules to police the integrity of the electoral process. With

rare exceptions, voters cannot themselves serve as an effec-

tive check merely by threatening to unseat incumbents for

acting on that incentive. The incumbents can continuously

® See generally Easley v. Cromartie, 582 U.S. 234, 242 (2001); ef.

Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (defendant in mixed-

motive employment discrimination case “prevails by showing that it

would have reached the same decision in the absence of the protected con-

duct”); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

(1977) (same).

14

redraw district boundaries to mitigate that threat, see Vieth,

541 U.S. at 364 (Breyer, J., dissenting); few potential chal-

lengers within the majority party could credibly promise to

disadvantage their party and ultimately their own political

prospects by drawing district lines in a more non-partisan

manner; and decisions to redistrict will rarely if ever stir

voters as much as the substantive political debates of the

day. As a result, courts will be the only effective check on

partisan abuses in the redistricting process. “{U Jnblocking

stoppages in the democratic process is what judicial review

ought preeminently to be about, and denial of the vote seems

the quintessential stoppage.” Ely, supra, at 117.

CONCLUSION

The judgment of the district court should be reversed.

Respectfully submitted.

MARY WILSON DAVID W. OGDEN

LLOYD LEONARD Counsel of Record

LEAGUE OF WOMEN VOTERS JONATHAN E. NUECHTERLEIN

OF THE UNITEDSTATES LEONARD M. SHAMBON

1730 M Street, N.W. JONATHAN H. SIEGELBAUM

Washington, DC 20036 WILMER CUTLER PICKERING

(202) 263-1300 HALE AND DORR LLP

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

JANUARY 2006

FILEM

JAN 10 2005

5! " Luordrac Goud, UB.

Nos. 03-204, ODO @ & -439 | CFFCEOF THE CLERK |

a

IN THE

Supreme Court of the United States

LEAGUE OF LATIN AMERICAN CITIZENS, ef al.,

TRAVIS COUNTY, TEXAS, ef al.,

EDDIE JACKSON, e/ al.,

GI FORUM OF TEXAS, ef ai.,

Appellants,

v.

RICK PERRY, ef al.,

Appellees.

On Appeal from the United States District Court

for the Eastern District of Texas

BRIEF OF THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. AS

AMICUS CURIAE IN SUPPORT OF APPELLANTS

THEODORE M. SHAW

Director-Counsel

JACQUELINE A. BERRIEN

*NORMAN J. CHACHKIN

DEBO P. ADEGBILE

CHINH Q. LE

JENIGH J. GARRETT

NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.

99 Hudson Street, 16” Floor

New York, NY 10013

(212) 965-2200

*Counsel of Record

Attorneys for Amicus Curiae

Introduction and Summary of Argument

TABLE OF CONTENTS

ARGUMENT —

Districts In Which Voters Of A Particular

Minority Group Do Not Constitute 50% Of

The Relevant Population, But Who Are Able

To Elect Candidates Of Their Choice In

Combination With Other Minority Voters, Or

With Reliable Crossover Votes From The

Population Majority, Meet The First Gingles

Precondition For A Viable Section 2 Claim ....

A. Recognizing “Crossover” or “Coalition”

Districts under Section 2 Is Consistent with

the Statutory , Structure and

Intent, and also with Court’s Voting

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

. Section 2 Claims Involving “Coalition” or

“Crossover” Districts Are Governed by

Manageable Standards Already Familiar to

_ Federal Courts from Past Section 2 Litigation ..

Whatever Limitations, If Any, The Court

Places Upon Political Gerrymanders, It Is

Essential That They, Like Other

Redistrictings, Remain Subject To

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

oeeetketnenneneeneveeeeeeeneeneneeeneeneeteeeneeae

14

TABLE OF CONTENTS (continued)

Page

A. The Doctrine that Racial Cleavages in Political

Party Affiliation Negate the Significance Under

Section 2 of Racial Voting Patterns

Misconstrues this Court’s Section 2

PIs von Savebhen se eenncudsencaves 18

B. The Fifth Circuit’s Partisanship Exception to

the Second and Third Gingles Preconditions

Ignores the Extent to which Race Has Become

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

C. Whether or Not It Holds that There Are

Constitutional Lumits to Partisan

Gerrymandering in the Redistricting Process,

the Court Should Explicitly Disapprove the

Fifth Circuit’s Unique Partisanship Exception

PNA wane cccccdsievinnbecsuxasceens 26

2 PEPER eT Pee Pee rere Terr TTT ee 27

TABLE OF AUTHORITIES

Cases:

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

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

Bush v. Vera, 517 U.S. 952 (1996) .........02 22 e ees |

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

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

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

Chisom v. Roemer, 501 U.S. 380 (1991) .........+..45- I

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

Concerned Citizens v. Hardee County Bd., 906

PREPS Gk MOOUD ivdavcidercxaidetests il

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

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

eB Pe Pe PET Per Teer ee Tye 23

Growe v. Emison, 507 U.S. 25 (1993) ......-00 eee eee. 7

Holder v. Hall, 512 U.S. 874 (1994) ............0005. 15

Houston Lawyers’ Ass'n v, Attorney General of

Se Fe SP EEE cS vnedescddrodssncess l

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

iv

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

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

Johnson v. DeGrandy, 512 U.S. 997 (1994) ...... Be ee ae

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

League of United Latin American Citizens v.

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

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

League of United Latin American Citizens v.

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

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

O29 F.28 S46 C9" Cle, USGI) icin ccccvcscnccvsses 11

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

NAACP vy. Button, 371 U.S. 415 (1963) ............205- l

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

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

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

Vv

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

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

PP tbeducieedocdpesescceee 6-7, 16, 17, 22

Shaw v. Hunt, 517 U.S. 899 (1996) 0... 66. cece cece wees l

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

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

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

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

ela de cot ae ccdgwe ness sees 23

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

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

NY ET Ce TLEL ELL ELELI LILI TL 7

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

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

White v. Regester, 412 U.S. 755 (1973) ......0...0000- 14

vi

TABLE OF AUTHORITIES (continued)

Page

Constitution and Statutes:

ee eM, EMD oc ct ns cnc deeewsadas vaue 26n

Voting Rights Act of 1965, Section 2,

PS EOD bs ceahacedsedsabaccees passim

Other Authorities:

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

Exploit Racial Conflict for Votes, WASHINGTON

ee 0. wekerudkwkd deh cWaeeeueds 24-25

Mary Frances Berry & John W. Blassingame, LONG

MEMORY; THE BLACK EXPERIENCE IN AMERICA

DE dtcdiwtaiddcebbetnecdseusmeseanmonsekat 25

Thomas B. Edsall & Mary D. Edsall, CHAIN

REACTION; THE IMPACT OF RACE RIGHTS, AND

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

Richard L. Engstrom, The Reincarnation of the Intent

Standard: Federal Judges and At-Large Election

Cases, 28 How. L.J. 495 (1985) .............05.5. 21

Vii

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Paul Frymer, UNEASY ALLIANCES; RACE AND PARTY

COMPETITION IN AMERICA (1999) ...........44.. 25

Bernard Grofman & Lisa Handley, /ssues in Voting

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

Bernard Grofman, Lisa Handley, & David Lublin,

Drawing Effective Minority Districts: A

Conceptual Framework and Some Empirical

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

Samuel Issacharoff, Polarized Voting and the

Political Process: The Transformation of Voting

Rights Jurisprudence, 90 Mich. L. REV. 1833

OUE Nws ve bed cbs asuswestacieececetecduds 11-12

Pamela S. Karlan, Loss and Redemption: Voting Rights

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

DE cccdedduamsedabtoucbseeatacaehnebs ees 1]

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

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

viii

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (contiziued):

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

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

SUBCOMM. ON THE CONSTITUTION OF THE

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

OED wdvicccdcnsdebanevouseswrbesece 2

]

Interest of Amicus Curiae’

The NAACP Legal Defense and Educational Fund, Inc.

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

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

The Legal Defense Fund’s first Director-Counsel was

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

committed to enforcing legal protections against racial

discrimination and to securing the constitutional and civil rights

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

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

corporate reputation for expertness in presenting and arguing

the difficult questions of law that frequently arise in civil rights

litigation”).

LDF has an extensive history of participation in efforts to

eradicate barriers to the full political participation of African

Americans in and to eliminate racial discrimination from the

political process. LDF has represented parties or participated

as amicus curiae in numerous voting rights cases before this

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

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

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

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

Citizens v. Clements, 999 F.2d 831 (5™ Cir. 1993) (en banc),

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

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

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

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

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

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

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

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

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

amici, made any monetary contribution to its preparation.

2

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

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

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

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

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

Chambers, President of the NAACP Legal Defense and

Educational Fund, Inc.).

Because of its longstanding commitment to the elimination

of racial discrimination in the -political process and the

protection of the voting rights of African Americans, LDF has

an interest in these appeals, which present important issues

concerning the interpretation and application of Section 2 of the

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

Introduction and Summary of Argument

The four post-2000 Census Texas congressional

redistricting cases consolidated before this Court arise from a

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

underlying facts are common because they detail a redistricting

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

to extract maximum political advantage. This is unremarkable.

Experience teaches that both the Democratic and Republican

parties aggressively pursue their partisan motives in

redistricting where they can contro] the process.

The story is extraordinary, however, because the naked

"partisan objectives of the redistricting process at issue were laid

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

means that the proponents employed to achieve their partisan

ends. A court-drawn and -approved congressional districting

plan fashioned after the 2000 Census, and described as tilting

in favor of the Republican party that contrcls Texas, was

deemed not to tilt far enough in an era when computer

3

innovations have enhanced the possibilities for highly effective

gerrymandering. Minority party Democratic legislators fled the

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

and passage of the plan that was ultimately passed. Proponents

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

obtaining the return of the departed state legislators, and

longstanding procedural rules of the legislature were nearly

abrogated to facilitate passage of the partisan plan.

This set of underlying facts —- manifesting familiar

redistricting opportunism as well as extraordinary proceedings

and techniques — presents this Court for the second time in

as many years with the central question whether partisan

distortions of the redistricting process can rise to the level of

Constitutional injury.

The political aspects of the case have received considerable

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

in service of constitutional guarantees could provide important

guidance in establishing the outer bounds to which elected

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

parties’, interests above those contemplated by the public and

Constitutional purposes of redistricting.

Because the cases consolidated before this Court arose in

Texas, a state that reflects many of the prevailing

demographic patterns and population trends in the United

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

important — set of questions that run through the jurisdictional

statements. These are questions about minority voting rights

and the degree to which contemporary partisan redistricting

battles are at tension with well-established legal principles that

protect minority citizens’ access to the political process and

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

partisan manipulations raise questions about the limits of