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

for finding a partisan gerrymander unconstitutional.’ See

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

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

attacks on virtually every single legislatively drawn map,

swamp the federal courts in litigation, and force the judiciary

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

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

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

test for availability, the more frequently interest rather than

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

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

for lowering the bar in this case.

B. The Texas Map Survives Any Cognizable

Standard of Vote Dilution.

More than satisfying Bandemer's constitutional standard,

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

survives scrutiny under any cognizable standard of vote

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

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

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

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

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

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

Mr. Smith: But the lower courts have since effectively

overruled Bandemer by requiring factual

showings of plaintiffs that are impossible and I

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

Bandemer then? | mean, Bandemer set a very

high standard. MP3 File: Oral Argument in

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

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

1648/argument.mp3.

9

While the present plan, drawn by a Republican Party

majority in 2003, has been decried as egregious, the

story must begin with the earlier map drawn by a

Democratic Party majority in 1991. That plan, put in

place following the 1990 census, was cited in the

political science literature as an extreme example of

what one party can do in drawing a redistricting map

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

Party gerrymander was still in place and, although

Republicans now enjoyed substantial statewide

majority strength, the results of the congressional

elections favored Democrats by a seventeen to

thirteen margin. Jd. at 767-68.

No one standard came out of Vieth, but four different

potential standards were suggested — one by the plaintiffs, and

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

any of these standards.

The Texas Map Yielded Election Results That Were

Closer to Proportional Partisan Representation

Than Those Under the 2001 Court Drawn Map.

While the Court has rejected proportionality as a

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

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

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

“requires proportional representation or that legislatures in reapportioning

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

contending parties in proportion to what their anticipated statewide vote will

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

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

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

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

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

districts simply because the supporters of losing candidates have no

legislative seats assigned to them”).

10

De Grandy, 512 US. 997, 1023 (1994). Indeed,

“disproportionate election results” has been the gravamen of

virtually every political gerrymandering complaint, underlying

most standards suggested to adjudicate political

gerrymandering claims. The Texas Map resulted in party

representation in the Texas congressional delegation that

closely reflected the percentage of the congressional vote each

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

undeniably closer to being proportional than the 2001

delegation elected under the interim court drawn map (or

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

Moreover, judging fairness in this regard, the Texas Map

exceeds both maps that were challenged, and upheld by the

Court, in Bandemer and Vieth."”

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

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

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

1991 Democratic redistricting plan which was closely followed by a court

in 2001”). -

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

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

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

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

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

Such quantitative “unfairness” also existed under the 2002 Pennsylvania

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

map resulted in Republicans controlling 63% of Pennsylvania’s

congressional seats despite the fact that Republican statewide candidates

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

of Commissions, Elections and Legislation, Pennsylvania Department of

State, 2004 General Election Returns, available at

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

Archive (last visited Jan. 26, 2006).

ll

There Is No History of Disproportionate Election

Results Visited Upon Appellants.

Texas electoral history displays no signs of

disproportionate election results affecting the Democratic Party.

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

Appellants benefited from disproportionate election results for

decades and the Texas Map merely corrected the Democrats’

disproportionate hold on the Texas congressional delegation.

Or, in the words of the Henderson Court:

The State’s description of the 2003 Texas legislative

plan as dismantling a prior partisan gerrymander that

had entrenched a minority party [the Democrats], in

order to allow a party with overwhelming statewide

voting strength [the Republicans] to capture two-

thirds of Texas’s congressional delegation, is a

characterization that the record supports. Henderson,

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

Moreover, Appellants’ complaint is based only upon the

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

a partisan gerrymandering claim is particularly difficult to

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

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

on a single election to prove unconstitutional discrimination is

unsatisfactory”). Indeed, without a finding that a

reapportionment will consign a political party to the minority

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

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

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

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

demonstrate anything of the sort.

12

There is No Indicia of Lack af Political rene and

Denial of Fair Representation.

In order to demonstrate lack of political power and denial

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

political group has “essentially been shut out of the political

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

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

interference with their fundraising, registration, organizing,

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

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

the polls, the Texas Democratic Party has successfully raised

money, registered voters, organized, and mounted vigorous

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

than being shut out from the process, the Texas Democratic

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

the Galveston County Democratic Party hosted a “Turn Texas

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

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

prominent national and state Democratic speakers such as

Democratic National Committee Chairman Howard Dean,

Texas Democratic Party Chairman Charles Soechting, 2004

_Democratic vice-presidential nominee John Edwards, General

President of the United Steelworkers Union Leo Gerard, and —

notably — 2006 Texas Democratic congressional candidates

Nick Lampson and Shane Sklar. See Texas Democrats To Meet

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

13

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

registration activity by the Texas Democrats in 2004."

1. The Vieth Plaintiffs’ Standard.

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

two-prong framework and identified specific factors for

determining whether a discriminatory effect had been visited

upon the purportedly disadvantaged political party. Under this

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

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

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

of the circumstances” confirms that the map can thwart the

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

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

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

sufficient evidence of discrimination, Appellants have not,

because they cannot, demonstrate that the Texas Map

systematically cracks and packs Democratic voters. Justice

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

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

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

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

'> Travis County Democratic Party Chairman Chris Elliot issued a

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

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

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

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

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

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

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

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

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

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

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

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

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

14

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

congressional representation closer to proportionality than

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

plaintiffs’ standard the Texas 2001 interim court drawn map

would likely have been overturned as a partisan gerrymander.

2. The Vieth Dissenters’ Standards.

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

identifying unconstitutional partisan gerrymandering that

focused on individual districts, rather than on an entire

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

a five-step prima facie test for adjudicating partisan

gerrymandering claims. To meet this test, Appellants would be

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

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

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

were specific correlations between the district’s deviations

from traditional districting principles and the distribution of the

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

which includes the plaintiff's residence, remedies the packing

or cracking of their group, and deviates less from traditional

districting principles; and (5) that Appellees acted intentionally

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

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

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

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

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

the Texas Map fails this test when the very relief that

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

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

a partisan gerrymander.

The standard outlined in Justice Stevens’s dissent also

focuses on individual districts, rather than on an entire

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

15

partisan gerrymandering claims would be analyzed under strict

scrutiny — if partisan motivation was the predominant

consideration in drawing district lines, absent a showing of

neutral justificatory criteria, the district would be invalid. In

this case, however, no sophisticated analysis is necessary to

demonstrate that the Texas Map passes the test. A cursory

visual inspection of the Texas Map suffices to show that the

Texas Legislature adhered to traditional redistricting criteria,

particularly when compared to Texas’s last legislatively

enacted congressional map, the 1992 map."

Justice Breyer’s dissent sets forth several hypotheticals,

arranged on a continuum, which might indicate

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

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

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

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

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

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

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

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

that, if anything, it was the Democratic congressional

delegation that had been unjustifiably entrenched, and that the

Texas Map merely dislodged their entrenchment. Since 1994,

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

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

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

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

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

U.S. 952 (1996).

16

the Texas congressional vote since 1992, yet they held a

majority of the seats until 2004.‘

Il. THE VOTING RIGHTS ACT OF 1965 IS A

STATUTORY SHIELD TO PROTECT MINORITY

POPULATIONS, NOT A PARTISAN SWORD.

District 23 is represented by Henry Bonilla, a Hispanic

Republican. Appellants argue that Mr. Bonilla does not

constitute a “candidate of choice” for Hispanic-Americans

because he is a Republican. Conversely, Appellants argue that

Martin Frost, an Anglo Democrat who represented District 24

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

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

by Appellants’ interpretation of Section 2 of the Voting Rights

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

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

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

Act’s language and legislative history, leave Appellants without

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

the Act’s role in protecting and increasing minority

participation and access would be undermined. Moreover,

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

drawn into question.

Such a theory of partisan-blind racial bloc voting was

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

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

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

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

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

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

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

1991 Democratic redistricting plan which was closely followed by a court

in 2001”).

17

Justice White’s concurrence is virtually identical to Texas

District 23:

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

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

of the blacks vote with the whites to elect a black

candidate who is not the choice of the majority of

black voters. This is interest-group politics rather than

a rule hedging against racial discrimination. I doubt

that this is what Congress had in mind in-amending §

2 as it did... Jd at 83.

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

cognizable minority population Section 2 requires districts be

drawn so that the minority-preferred Democrat usually wins,

has also been consistently recognized and rejected by lower

courts with the same justification.'’

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

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

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

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

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

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

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

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

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

exists in District 23.

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

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

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

386, 401, 403, 427 n.134 (S.D.N.Y. 2004); (“The Voting Rights Act does

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

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

County, 76 F.3d 1381, 1992 (6th Cir. 1996) (A “group that is too small to

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

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

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

18

Appellants also argue that former District 24 should be

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

— the method by which the Texas legislature here chose to

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

is clear, however, that District 24 was never a minority

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

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

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

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

Democratic district was created, District 9, that elected an

African-American Democrat. All of the other performing

minority districts, including Congressman Bonilla’s district,

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

minority representatives as they had previously. Indeed, the

Texas Map enhances minority representation. The prior map

had resulted in five Hispanic Democrats, one Hispanic

Republican, and two African-American Democrats, being

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

Democrats, three African-American Democrats, and one

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

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

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

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

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

‘8 — Minority-majority districts are districts in which a majority of the

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

U.S. 997, 1023 (1994).

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

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

See Joint Appendix, at 51a. Second, Anglos constituted the District’s largest

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

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

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

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

19

additional seat controlled by the Hispanic electorate was

created, District 25.

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

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

minority groups, is only further underscored by its legislative

history. Resulting from the violence that surrounded efforts in

early 1965 to register African-American voters in Selma,

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

not political party affiliation. Indeed, President Lyndon Johnson

was focused solely on ending practical barriers to minority

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

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

subjective (e.g., literacy tests). See MESSAGE FROM THE

PRESIDENT OF THE UNITED STATES RELATED TO THE RIGHT

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

ending the practical barriers to voting faced by minorities is

further demonstrated by President Johnson’s speech to a special

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

The issue of equal rights of American Negroes is [a

challenge to the values and purposes of America.] And

should we defeat every enemy, and should we double

our wealth and conquer the stars and still be unequal to

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

meet here tonight as Americans — not as Democrats or

Republicans — we are met here as Americans to solve

that problem.” Jd. (emphasis added).

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

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

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

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

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

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

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

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

20

The Act’s legislative history, saturated with discussion

about ending barriers to minority voting, is virtually absent of

any reference to political party representation. Indeed, the

legislative history expressly disclaims congressional intent to

establish any right to have members of even protected classes

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

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

identifiable groups having a right to be elected in proportion to

2! It is abundantly clear that “during the hearings, a unanimous consensus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

proportional representation as a remedy.”).

21

their voting potential was repugnant to the democratic

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

are entitled to have an equal chance of electing candidates of

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

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

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

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

Finally, to argue that elected Republicans would play such

an integral role in legislation designed to elect more Democrats

defies common sense. The Act itself, it is widely

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

the Republican Senate Minority Leader from Illinois.” One

historian describes the Republican Senator’s role as follows:

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

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

even than produce the necessary votes to enact them.

He also did what few of his colleagues were capable

of doing: he played the principal role in drafting their

language, and thus determined their exact legislative

thrust and intent. NEIL MACNEIL, DIRKSEN:

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

1970) (emphasis added).

It is hard to imagine that Senator Dirksen intended for the

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

22 Not only did Senator Dirksen play a large role in the Act’s drafting, but

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

EVERETT DIRKSEN AND HIS PRESIDENTS: HOW A SENATE GIANT SHAPED

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

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

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

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

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

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

had a chance to lobby for the bill”).

22

account, in a conversation with his Republican Senate

colleagues Senator Dirksen stated: “Republican senators [will]

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

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

PRESIDENTS: HOW A SENATE GIANT SHAPED AMERICAN

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

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

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

protection of racial minorities.

CONCLUSION

For the reasons set forth above, amicus RNC urges the

Court to affirm the District Court decision.

Respectfully submitted,

THOMAS J, JOSEFIAK

Counsel of Record

SEAN CAIRNCROSS

REPUBLICAN NATIONAL

COMMITTEE

310 First Street, S.E.

Washington, D.C. 20003

(202) 863-8500

February 1, 2006 Counsel for Amicus Curiae

ma wiknatastaue |

In The

Supreme Court of the Anited S

LEAGUE OF UNITED LATIN

AMERICAN CITIZENS, et ai.,

eee Appellants,

v.

RICK PERRY, et al.,

Appellees.

.

TRAVIS COUNTY, TEXAS, et ai., |

Appellants,

Vv.

RICK PERRY, et ai.,

Appellees.

°

On Appeal From The United States District Court

For The Eastern District Of Texas

¢

BRIEF OF AMICI CURIAE SPEAKER OF THE

GEORGIA HOUSE OF REPRESENTATIVES GLENN

RICHARDSON; SPEAKER PRO TEMPORE OF THE

GEORGIA STATE SENATE ERIC JOHNSON; HOUSE

THE GEORGIA GENERAL ASSEMBLY

IN SUPPORT OF APPELLEES

SJ

ANNE W. LEwis, Esq.

Counsel of Record for Amicus Curiae

FRANK B. STRICKLAN®, ESQ.

STRICKLAND BROCKINGTON LEwis LLP

1170 Peachtree Street, N.E., Suite 2000

Atlanta, GA 30309

(Telephone) 678.347.2200

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

°

EDDIE JACKSON, et al.,

Appellants,

v.

RICK PERRY, et ai.,

Appellees.

Sf

GI FORUM OF TEXAS, et al.,

Appellants,

v.

RICK PERRY, et al.,

Appellees.

i

QUESTIONS PRESENTED

Does the Constitution require federal court-ordered

redistricting plans-to remain in effect during an entire

decade, foreclosing all subsequent redistricting legislation

enacted by the Legislature?

Does the Constitution restrict the redistricting au-

thority of state legislatures to one time per decade,

thereby mandating the use of the first-passed plan for the

entire decade and prohibiting state legislatures from

remedying gross partisan gerrymandering that exists in

the plan?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....0.-...cssseecssvesssseeessvecesee ‘

TABLE OF CONTENTS ......-ccscccssccssvecssseccssessesseesssvees ii

TABLE OF AUTHORITIES. .....-0..-ssscesssssesssssesessseeeen iii

STATEMENT OF INTERESTS OF AMICI CURIAE... 1

SUMMARY OF ARGUMENT. .........cssessssecssssecessveeeses 2

a i a ae 5

I. THE IMPOSITION OF A COURT-ORDERED

REDISTRICTING PLAN DOES NOT OPER-

ATE AS A WAIVER BY THE STATE OF ITS

AUTHORITY TO REDISTRICT UNDER ART. I,

§ 4 AND CONSEQUENTLY DOES NOT PRE-

EMPT A STATE LEGISLATURE FROM EN-

ACTING SUBSEQUENT REDISTRICTING

Il. THERE IS NO FEDERAL CONSTITU-

TIONAL OR STATUTORY LIMITATION ON

THE AUTHORITY OF STATE LEGISLA-

TURES TO REDISTRICT MORE THAN ONE

TIME AFTER THE DECENNIAL CENSUS.... 6

Ill. PROHIBITING REDISTRICTING MORE

THAN ONCE A DECADE WILL PERMIT

EGREGIOUS PARTISAN GERRYMANDER-

ING IN THE ORIGINAL REDISTRICTING

PLAN AND FORECLOSE ANY EFFORT TO

REMEDY THAT PLAN FOR AN ENTIRE

BAITED océconvsccesccasoccsctesssvoenetoncnscctagennenpasingsee 8

SEE EEEEID cc nccccccenccsessninovoneienesanssenbbnoebapesensenensesas 12

TABLE OF AUTHORITIES

Page

CASES

Branch v. Smith, 538 U.S. 254 (2003)..........sssssssessseesseeesvees 5

Chapman v. Meier, 420 U.S. 1 (1975)...........cceeeecceceeeeseeeeees 5

Connor v. Finch, 431 U.S. 407 (1977) .....s.cssssssenereseereenenees 6

Daly v. Hunt, 93 F.3d 1212 (4th Cir. 1996) ...........cceeeeeeee 7

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

Cir. 1990), cert. denied, 498 U.S. 1028 (1991)................. 7

Growe v. Emison, 507 U.S. 25 (1993)...............ccecceeceseeeeceees 5

Johnson v. Mortham, 926 F. Supp. 1460 (N.D.Fia.

1996), aff’d sub nom., Johnson v. Smith, 132

nes ET SORE GO Be vets ccipctsicidestininieennstenbinemeianteeees 7

Larios v. Cox, 306 F. Supp. 2d 1212 (N.D.Ga. 2004)........... 5

Larios v. Cox, 314 F. Supp. 2d 1357 (N.D.Ga. 2004)........... 6

Reynolds v. Sims, 377 U.S. 533 (1964)....................00+- 5, 6, 7

Upham v. Seamon, 456 U.S. 37 (1982) ............:cccccceeeeeeeeeees 5

Wesberry v. Sanders, 376 U.S. 1 (1964)..............ccccceeeeseee sees 6

Wise v. Lipscomb, 437 U.S. 535 (1978)............ccccccseeeeeeee 5,6

CONSTITUTION

Sree GUT. GU, Bi GG ccvcssccasterteccssccrunsssainsntesicuniasiobesioiees 5, 7

STATUTES & RULES

es Oy SP eee iccnitescctcnsiecdiiniansniniitndigniaenpeibanmmeinions 7

es Fr GD wottecssscecnistsnocrigttnsceesiisenionialenineiaaiadaa 7

42 U.S.C. § 1971 et 80q. (2005).........:cssceecceessessoesssecseseseees 10

iv

TABLE OF AUTHORITIES -— Continued

Page

TSR RS SE SIE 1

iit ats ET th eccshedtitinbeatinnanidsdlndiecgenntiongeitenadtpanbdentbictainaniciats 1

1

STATEMENT OF INTERESTS

OF AMICI CURIAE

The Amici Curiae are the Speaker of the Georgia

House of Representatives Glenn Richardson; the President

Pro Tempore of the Georgia State Senate Eric Johnson; the

Majority Leader in the Georgia House of Representatives,

Jerry Keen; the Majority Leader in the Georgia State

Senate, Tommie Williams; the Chairman of the Legislative

and Congressional Reapportionment Committee of the

Georgia House of Representatives, Bobby Franklin; and

the Chairman of the Reapportionment and Redistricting

Committee of the Georgia Senate, Chip Rogers (“the

Georgia Legislative Amici”).' The Georgia Legislative Amici

led the 2005 effort in the Georgia General Assembly to

redraw Georgia’s 2001 Congressional Plan, which repre-

sented one of the worst and most blatant partisan gerry-

manders of the decade. See App. 1. As a result, the 2005

Georgia General Assembly enacted a Congressional redis-

tricting plan which eliminated the 2001 gerrymander and

provided a rational Congressional plan for the remainder of

the decade (“the 2005 Congressional Plan”). See App. 2.

The Georgia Legislative Amici submit this brief

because they are concerned that the severe restriction on

redistricting urged by Appellants, if accepted, would

unconstitutionally impinge upon the right and obligations

* As required by Rule 37.3(a) of this Court, Amici Curiae have

sought and received the written consent of all parties to file this brief

presented. Copies of letters of consent signed by counsel are filed

herewith with the Clerk of the Court. Pursuant to this Court’s Rule

37.6, Amici Curiae state that none of the parties authored this brief in

whole or in part, and no person or entity, other than the Amici Curiae

or their counsel, made a monetary contribution to the preparation or

submission of the brief.

of state legislatures. The Georgia Legislative Amici seek to

ensure that the Georgia General Assembly continues to be

able to exercise its redistricting power both (1) after the

imposition of federal court-ordered plans specifically and

(2) during the decade generally.

«

SUMMARY OF ARGUMENT

This Court should reject Appellants’ argument that

state legislatures are limited to one redistricting plan per

decade, whether court-ordered or legislatively-enacted.

Neither the Constitution nor this Court’s jurisprudence

provides any support for the imposition of such restric-

tions on the redistricting power and authority of state

legislatures.

As an initial matter, the existence of a court-ordered

plan does not strip a legislature of its prerogative to enact

a redistricting plan. To the contrary, in implementing

plans, courts consistently provide opportunities for legisla-

tures to act first, impose plans with great reluctance and

make clear that the plans are interim, i.e., in effect until

legislatures replace them with another valid plan.

Legislatures are also free to change their own plans

throughout the decade, as long as the new plan meets

constitutional and statutory requirements. In Georgia, the

redistricting process has historically gone on throughout

the decade, with the General Assembly revising various

districts as it deems appropriate.

Appellants’ framework, however, would limit the

states to one redistricting plan for the decade, whether

drawn by a court or the legislature. Appellants initially

3

appear to restrict the limitation they urge to mid-decade

redistricting when the same is done “for the sole purpose

of maximizing partisan advantage,” Appellants’ Brief at

17. However, application of the rule urged by Appellants —

coupled with their argument invoking the constitutional

guarantee of one person, one vote — makes clear that the

relief Appellants espouse would ultimately result in a

blanket prohibition against mid-decade redistricting.

In its application, Appellants’ argument would exempt

from scrutiny the original redistricting plan enacted after

the Decennial Census (“the Census”) because such a plan

would always have as one of its purposes the equalization

of population; therefore, Appellants reason, the original

plan could never be described as having been implemented

solely for the purpose of maximizing partisan advantage.

As a result, even a blatant partisan gerrymander, such as

the one passed by the Georgia General Assembly in 2001,

see App. 1, would be acceptable under Appellants’ rule

because, as the first plan implemented after the Census, it

could not have had as its sole purpose the maximization of

political power. In essence, legislatures would be given a

free pass to gerrymander during the first redistricting

after the Census.

Then, however, future legislatures would be forever

foreclosed from remedying that gerrymander during the

decade. Appellants may argue that future legislatures

would only be foreclosed if the sole purpose of their later

redistricting were to maximize partisan advantage.

Dismantling a gross partisan gerrymander, by definition,

weakens the partisan advantage of the gerrymandering

party. Under Appellants’ theory, the Georgia General

Assembly would have been prohibited from enacting its

2005 Congressional redistricting plan, which, rather than

4

being a gross partisan gerrymander, eliminated the gross

partisan gerrymander enacted in 2001, see App. 2.

Thus, examining the application of Appellants’ theory

demonstrates that Appellants’ aim is to eliminate mid-

decade redistricting. That objective is made even clearer

by the argument of Appellants and the University Profes-

sors Amici that the use of Census numbers in mid-decade

' redistricting violates the constitutional principle of one

person, one vote because the Census numbers are several

years old. Because redistricting practically cannot be

based on any other numbers, the argument of Appellants

and the University Professors Amici against the use of

Census numbers in mid-decade redistricting is another

way of arguing against mid-decade redistricting at all.

Although Appellants’ political purposes in this par-

ticular instance might be served by the result they urge,

there is no constitutional basis for the limitation on the

authority of the state legislatures they espouse. Further-

more, in application, such a limitation will likely result in

gross partisan gerrymanders, drawn the first year of a

decade, that can never be reversed. For those reasons, the

Court should affirm the court below.

°

ARGUMENT

I. THE IMPOSITION OF A COURT-ORDERED

*“ REDISTRICTING PLAN DOES NOT OPERATE

AS A WAIVER BY THE STATE OF ITS AU-

THORITY TO REDISTRICT UNDER ART. I, § 4

AND CONSEQUENTLY DOES NOT PREEMPT

A STATE LEGISLATURE FROM ENACTING

SUBSEQUENT REDISTRICTINC PLANS

The existence of a court-ordered redistricting plan in

this case did not, as Appellants suggest, prohibit the Texas

legislature from enacting a new plan. As discussed above,

the drawing of redistricting plans is the responsibility of

the state legislature. U.S. CONST., Art. I, § 4; Branch v.

Smith, 538 U.S. 254, 261 (2003); Growe v. Emison, 507

U.S. 25, 34 (1993); Chapman v. Meier, 420 U.S. 1, 27

(1975); Reynolds v. Sims, 377 U.S. 533, 586 (1964). The

imposition of a court-drawn plan does not effectively

operate as a waiver of the state’s authority to redistrict.

To the contrary, court-ordered plans are inherently

interim solutions, implemented only when a legislature fails

to draw a plan or the plan enacted by a legislature is struck

down by the court. See, e.g., Growe, 507 U.S. at 34; Upham v.

Seamon, 456 U.S. 37, 41-42 (1982); Wise v. Lipscomb, 437

U.S. 535, 540 (1978); Larios v. Cox, 306 F. Supp. 2d 1212,

1213 (N.D.Ga. 2004). Before imposing a plan, a court will

provide the state legislature every opportunity to enact a

plan. See, e.g., Larios, 306 F. Supp. 2d at 1214 (“the court

continues to encourage the enactment of reapportionment

maps by the General Assembly of Georgia, which is now in

session. We are aware that members have been working on

and considering such legislation. Nothing in this order or

any previous order of this court is intended to prevent or

forestall the General Assembly and the Governor from

6

considering and enacting reapportionment plans after March

1, 2004, resolving the issues in this case. Nor should this

court’s orders be construed in any way as to discourage such

a resolution of this matter.”).

More importantly, if the court must devise and impose

a reapportionment plan, it does so “‘pending later legisla-

tive action.’” Larios, 314 F. Supp. 2d 1357, 1360 (N.D.Ga.

2004), quoting Wise, 437 U.S. at 540 and Connor v. Finch,

431 U.S. 407, 415 (1977). Thus, the existence of a court-

ordered interim plan does not bar later legislative action

but rather presumes it.

Il. THERE IS NO FEDERAL CONSTITUTIONAL

OR STATUTORY LIMITATION ON THE AU-

THORITY OF STATE LEGISLATURES TO RE-

DISTRICT MORE THAN ONE TIME AFTER

THE DECENNIAL CENSUS

Just as a court-ordered plan does not preempt later

action by the legislature neither does the legislature’s own

action bar its later redis+ricting efforts. Absent a state

constitutional or statutory provision prohibiting the

legislature from enacting redistricting plans subsequent to

one first implemented each decade, the legislature is free

to enact new redistricting plans throughout the decade.

Federal law does not provide otherwise. In a 1964

Georgia case, Wesberry v. Sanders, 376 U.S. 1 (1964), this

Court established that, at a minimum, a state must

redistrict following the Census. That same year, in Rey-

nolds v. Sims, 377 U.S. 533 (1964) this Court reiterated

that a legislature’s failure to redistrict once after release of

the Census was “constitutionally suspect.” Reynolds, at

583-84.