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

7

mary opponent since his incumbency began,” and that the

court had “no measure of what Anglo turnout would be in a

Democratic primary if Frost were opposed by a Black candi-

date.” bid. The court also noted that Congresswoman Eddie

Bernice Johnson had testified “that District 24 was drawn for

an Anglo Democrat.” /bid. In the court’s view, appellants’

claim “rests upon the shaky ground that much of the dominat-

ing Anglo Democratic vote does not bother to vote in the pri-

mary with Frost filling in as an unchallenged Anglo.” Jbid.

The court thus found that “the most rational conclusion” is

that “Anglo Democrats control this district.” Jd. at 1lla-112a.

The district court also concluded that appellants’ claim was

deficient with respect to the second and third Gingles precon-

ditions. See J.S. App. 112a-113a. The court stated that, based

on its voting behavior in prior elections, the cohesiveness of

the 21.4% African American voting age population is “far from

clear.” Jd. at 112a. In addition, the court pointed to the “An-

glo cross over rate of 30.75” in general elections, which, the

court stated, suggests “the absence of Anglo bloe voting under

Gingles’s third precondition.” /d. at 111a.

c. South and West Texas. The district court also rejected

appellants’ claim that the State’s redistricting plan violates

Section 2, because it did not create a seventh Hispanic-major-

ity district in South and West Texas. J.S. App. 12la. The

district court explained at the outset that it had rejected the

identical argument in Balderas; that this Court had sum-

marily affirmed that decision; and that appellants had pro-

vided no reason to reject that decision. /d. at 124a. In any

event, the court went on to reject that claim on its merits.

The district court found that appellants had failed to prove

that “their demonstration plan would satisfy Gingles,” given

that its districts were so “unusually shaped.” J.S. App. 125a.

But even excusing the threshold “Gingles problems” with

8

their plan (Plan 1385C), the court held that appellants “failed

. to make the necessary showing under § 2.” Jd. at 126a.

The district court explained that proportionality—an im-

portant factor, see Johwson v. De Grandy, 512 U.S. 997, 1020

(1994)—cuts against appellants’ Section 2 claim. The court

noted that other courts that had analy7cu proportionality had

“us{ed] the same frame of reference for that factor and for the

factors set forth in Gingles.” J.S. App. 129a. In this case,

that frame of reference is South and West Texas. The court

noted that “six out of the seven districts in South and West

Texas,” or about 85% of the districts, are “citizen voting age

majority [Hispanic] districts.” /bid. Thus, because “Latinos

comprise 58% of the citizen voting age population in South

and West Texas,” the court found, “proportionality is satisfied

as to that area.” /bid.

Furthermore, the court found that the plan proposed by

appellants would not yield seven “effective majority-minority

districts.” J.S. App. 130a. The court explained that one of the

districts in appellants’ Plan 1385C “has a Hispanic citizen

voting age population of only 50.3%, and five of the seven dis-

tricts have a Hispanic citizen voting age population that is

below 60%.” Ibid. In addition, the court noted that “because

of the lower turnout of Latino voters, a low majority of the

Hispanic citizen voting age population does not produce an

effective Latino opportunity district.” Jd. at 13la. Finally,

the court concluded that “the six Hispanic citizen voting age

population majority districts drawn in [the State’s plan] are

effective Hispanic opportunity districts.” Jd. at 133a.

d. Judge Ward concurred in part and dissented in part.

J.S. App. 171la-200a. He agreed with the court’s judgment

“insofar as it rejects the claims surrounding District 24.” /d.

at 173a. With respect to the claims involving South and West

Texas, however, Judge Ward concluded that “(t]he state ac-

~

9

tion in this case unlawfully dilutes the strength of the Latino

voters residing in former District 23.” Jbid.

4. Plaintiffs appealed to this Court. 28 U.S.C. 2101(b). On

October 18, 2004, the Court issued an order vacating the judg-

ment and remanding the case to the district court for further

consideration in light of Vieth v. Jubelirer, 541 U.S. 267

(2004). Jackson v. Perry, 125 S. Ct. 351, 351-352 (2004).

5. On June 9, 2005, the district court issued a decision

holding that the Texas redistricting plan was constitutional in

light of Vieth. J.S. App. la-55a. The district court briefly.

rejected the renewed Section 2 challenge, holding that it had

“examined and rejected all of the claims in detail in [the

court’s] previous opinion.” /d. at 39a-40a. Judge Ward filed

a specially concurring opinion. /d. at 45a-55a. With respect

to the Section 2 issues, he adhered to the views expressed in

his opinion prior to the remand. /d. at 55a n.6.

SUMMARY OF ARGUMENT

Section 2 of the Voting Rights Act guarantees the members

of a protected class an equal opportunity with other members

of the electorate to “elect representatives of their choice.” 42

U.S.C. 1973. A plaintiff alleging a violation of Section 2 bears

the burden of proving that the challenged practice has the

effect of denying or abridging such an opportunity under the

framework established by Thornburg v. Gingles, 478 U.S. 30,

50-51 (1986). The district court concluded that appellants

failed to meet that burden. That decision is supported both

by this Court’s precedents and by the district court’s factual

findings, and should be affirmed.

I. In rejecting appellants’ Section 2 challenge to the elimi-

nation of District 24, the district court found that African

Americans did not control the district in the court-ordered

2001 plan. Appellants themselves recognize that, in order to

satisfy the first Gingles precondition, they must at a minimum

10

show that they could draw a district in which African Ameri-

cans would control the outcome of elections and thus be able

to elect the candidate of their choice. Although African Amer-

icans constituted less than 22% of the voting population in the

district, appellants claimed that African Americans effectively

controlled the Democratic primary in the former District 24

and that the Democratic candidate was ordinarily elected in

that district. The district court found that appellants failed,

however, to carry their burden of proving African American

control of the Democratic primary, because appellants “over-

state the impact of the Black Democrats’ control of the prima-

ries” and “the most rational conclusion” is “that Anglo Demo-

crats control this district.” J.S. App. 1lla-112a. Those find-

ings are supported by record evidence and are not clearly

erroneous. Indeed, it is not surprising that minority voters .

did not control a district in which they constituted only 22%

of the voting age population.

Because appellants failed to establish the fact of effective

African American electoral control that they themselves rec-

ognize was essential to their claim, the district court properly

rejected that claim. Accordingly, this case does not require

the Court to resolve the legal issue on which the Jackson ap-

pellants ground their appeal: whether a plaintiff asserting a

Section 2 vote dilution claim must always be able to draw a

district in which the minority group would constitute an abso-

lute numerical majority. This Court has expressly reserved

that question, and the issue implicates difficult questions in

borderline cases in which a group closely approaches 50%.

But this case is not a borderline case, and the district court’s

factual findings foreclose appellants’ claim even under their

expansive vote-dilution theory. Moreover, permitting Section

2 vote-dilution claims when, as here, a minority group is sub-

stantially less than a majority of voters in an alternative &e-

trict presents a number of potentially significant concerns.

11

II. The district court properly rejected appellants’ Section

2 challenge to the districting in South and West Texas. This

Court summarily affirmed the district court’s rejection of

essentially the same claim in Balderas v. Texas, 536 U.S. 919

(2002). Even aside from Balderas, however, the district court

below made two additional findings that defeat the claim.

First, the court found that appellants were unable to show

that more than six districts could be created in South and

West Texas in which Hispanics would be able to elect the can-

didate of their choice. In particular, the court found that, in

light of evidence of relatively low turnout among Hispanics,

they would not have the opportunity to elect the candidate of

their choice in a proposed district that had a Hispanic popula-

tion of only 50.3%. Second, the court found that Hispanics,

who make up roughly 58% of the relevant population in South

and West Texas, are a majority in 85% (six of seven) of the

districts in that area in the State’s 2003 plan. That level of

more-than-proportional representation in the relevant area

strongly suggests that, under the totality of the circum-

stances, the State’s plan does not result in a denial or abridge-

ment of the right to vote as defined in Section 2. See De

Grandy, 512 U.S. at 1016. Section 2, moreover, does not im-

pose an obligation to maximize the number of majority-mi-

nority districts in that region. See ibid.

ARGUMENT

I. SECTION 2 DID NOT REQUIRE THE STATE TO INCLUDE

A DISTRICT COMPARABLE TO OLD DISTRICT 24 IN ITS

2003 PLAN

A. Appellants Failed To Establish The First Gingles Precon-

dition

1. Under the first Gingles precondition, plaintiffs challeng-

ing an existing districting plan generally must show that they

could draw an alternative plan containing reasonably compact

12

districts in which the minority group would be sufficiently

large to constitute a majority. The purpose of that require-

ment is to “establish that the minority has the potential to

elect a representative of its own choice in some single-mem-

ber district,” Growe v. Emison, 507 U.S. 25, 40 (1993), a nec-

essary prerequisite to establishing that the minority has been

deprived of the “opportunity * * * to elect representatives of

their choice.” 42 U.S.C. 1973b. Plaintiffs bear the burden of

showing that that requirement has been met. Voinovich v.

Quilter, 507 U.S. 146, 155 (1993).

African Americans constitute less than 22% of the voting

age population in District 24 in the court-ordered plan—the

district they identified to demonstrate the first Gingles pre-

condition. J.S. App. 107a. Appellants, therefore, would ap-

pear to face a formidable obstacle to establishing a majority-

minority district, to say the least. Appellants assert, how-

ever, that the first Gingles requirement nonetheless can be

satisfied even at this low percentage in a “demonstration”

district, so long as the district is a “coalitional district effec-

tively controlled by one minority group.” 05-276 Appellants

Br. 39. Even under their own theory of the case, however,

appellants had to prove that old District 24 was “effectively

controlled by African-American voters,” id. at i, in order to

. Appellants on several occasions refer to District 24 as a “majority-

minority” district. See 05-276 Appellants Br. 8, 16, 40. By that, appellants

apparently are referring to the fact that African Americans, Hispanics, and

“other” minorities constitute a majority of the voting age population—

combined. That majority is itself borderline, because the district court found

that African Americans and Hispanics together constitute only 46.4% of the

voting age population of District 24, J.S. App. 107a, and appellants assert only

4% Asian or “other” minorities. 05-276 Appellants Br. 8. In any event, the

district court found that there is “no cohesion” between African American and

Hispanic voters, J.S. Arp. 111a, and appellants’ Section 2 claim therefore rests

on the contention that. African Americans—who constitute less than 22% of the

voting age population ~exercise “effective” electoral control.

13

satisfy the first Gingles precondition. Appellants attempted

to carry that burden by arguing that African Americans effec-

tively controlled the Democratic primary and that the winner

of the Democratic primary could be expected to prevail in the

general election in the district.*

2. In a finding that is fatal to their Section 2 claim, the

district court found that District 24 in the court-ordered 2001

plan was not effectively controlled by African Americans.

Instead, the court found that appellants had “overstate[d] the

impact of the Black Democrats’ control of the primaries.” J.S.

App. llla. Rather than being a “Black opportunity district,”

the court found that, “[mJore accurately, * * * [District 24] is

a strong Democratic district,” id. at 110a, and “that Anglo

Democrats control this district is the most rational conclu-

sion.” Jd. at 1lla-112a. Because that finding was not clearly

erroneous, it is entitled to respect on appeal and forecloses

appellants’ claim even under their own expansive theory of

Section 2 liability. See Gingles, 478 U.S. at 79 (“clearly erro-

neous test * * * is the appropriate standard for appellate

review of a finding of vote dilution”).

a. The record amply supports the district court’s finding

that African Americans lacked effective electoral control over

District 24. For example, there was direct evidence “that

District 24 was drawn for an Anglo Democrat,” J.S. App.

1lla; see id. at 107a (similar), regardless of whether he is the

candidate of choice of the African American minority. Con-

gresswoman Eddie Bernice Johnson, an African American

who represented the neighboring, majority-African American

District 30 in the 2001 plan, had served in 1991 on a state leg-

islative committee that addressed congressional redistricting.

J.A. 262-263. She testified at trial that, in 1991, African

3 Appellants do not argue that a plan in which a State allegedly fails to draw

“influence districts”—i.e., districts which, by definition, the minority group

does not effectively control, see Georgia, 539 U.S. at 482—violates Section 2.

14

American communities in that area had been divided “to elect

White Democrats,” including Congressman Frost. J.A. 264.

She also testified that the motivation for District 24 in the

1991 plan was “to accommodate others,” and, in particular,

“White Democrats.” J.A. 265. The district court heard that

testimony about the original intent for creating District 24,

and the court relied on it in concluding that the intent had

been realized. See J.S. App. 107a, 111a.*

In addition, the district court examined appellants’ proof

of actual election results in District 24 congressional elections.

No African American ever won election to Congress in old

District 24. It is true that Frost received the votes of African-

Americans in the Democratic primary. But, as the court

found, that fact is not probative, because Frost not only was

running with the advantages of incumbency, but also “ha[d]

not had a primary opponent since his incumbency began” in

the currently configured District 24. J.S. App. 1lla. Indeed,

the court found that the fact “[t]hat no Black candidate has

ever filed in a Democratic primary against Frost in a district

assertedly controlled by Blacks reflects the accuracy of Con-

gresswoman Johnson’s claim that District 24 was drawn for

* Similarly, Democratic state legislator Ron Wilson, when asked whether

“District 24 * * * is a District that would elect a Black for Congress if pitted

against an Anglo,” responded “There’s no way. There’s absolutely no way it

can happen.” J.A. 277. To be sure, some “local African-American leaders”

testified that “Congressman Frost went unchallenged in the African-American-

dominated primaries precisely because he was the black voters’ candidate of

choice.” 05-276 Appellants Br. 42 n.35 (citing statements of former Mayor Ron

Kirk, Commissioner Roy Brooks, and Congressman Frost himself). However,

especially in light of the obvious potential partisan motivation underlying the

testimony of Democratic officeholders and of Congressman Frost himself, the

court was entitled to decline to give their testimony dispositive weight.

15

an Anglo Democrat,” not to attempt to provide control to an

African American minority of 22%. [bid.°

While African Americans constituted less than 22% of the

voting age population of old District 24, Anglos were close to

50% of the CVAP. Texas has an open primary system, in

which individuals can choose to vote in any party’s primary on

election day. See Tex. Elec. Code Ann. $§ 63.001, 162.002-

162.003, 162.010 (2003); see also Michael Barone & Richard E.

Cohen, The Almanac of American Politics 1575 (2006)

(“Texas does not have party registration, and so turnout in

each party’s primaries is a fair index of party preference.”).

In those circumstances, it is not surprising that Anglos—not

African Americans, who were only the third largest ethnic

group in the district and comprised only about one-fifth of its

population—would control the district. And if the district is

solidly Democratic (as appellants assert), the “most rational

conclusion” is that Anglo Democrats would control the dis-

trict, as the district court found. J.S. App. 111la-112a.°

© ‘The district court also noted that District 25 under the court-ordered 2001

plan had “demographics * * * strikingly similar” to the demographics in

District 24. J.S. App. 109a. The percentage of African American voters in

District 25 was identical to District 24 (21.4%), and the Hispanic population was

very close. /bid. Yet, in the 2002 Democratic primary in District 25, the white

candidate, Bell, “defeated Carroll Robinson, the Black candidate of choice.”

[bid. That evidence also supports the district court’s factual finding.

: Appellants assert that Anglo Democrats, who they say—without record

citation—constitute “only about 18% of the district’s general electorate,” had

“no ability to control who the party nominated.” 05-276 Appellants Br. 41 n.33.

Even assuming that the 18% figure is accurate, Anglo Democrats were not

substantially fewer in number than African Americans (22%), who appellants

argue do control the district. More important, Anglo Democrats could control

the district because Texas operates an open primary system, in which all

voters—including Republicans and independents—can vote in the Democratic

primary. The district court reasonably concluded that African Americans, who

vote primarily Democratic and therefore do not have that potential to tap same-

race non-Democratic voters, do not control the district.

16

b. Appellants have not shown that the court’s factual find-

ing that African Americans lacked effective control was

clearly erroneous. They argue (without citation) that “in 19

of 20 recent general elections for statewide office, the candi-

date preferred by black and Latino voters carried this dis-

trict.” 05-276 Appellants Br. 42. Because that statistic refers

only to general elections and to the candidate “preferred by

black and Latino voters,” it casts no doubt on the district

court’s conclusion that, in an election in which African Ameri-

can voters (not including Latino voters) and Anglo voters

have a different candidate of choice, Anglo voters—and Anglo

Democrats, in particular—would have prevailed.’

Appellants also emphasize that African Americans consti-

tuted 64% of the voters in the Democratic primary in old Dis-

trict 24. As the district court pointed out, however, appel-

lants’ claim crucially depends on the premise that “much of

~ the dominating Anglo Democratic vote does not bother to vote

in the primary with Frost filing as an unchallenged Anglo.”

J.S. App. 1lla. The district court could reasonably conclude

that exceptionally low turnout by Anglos indicates only that

Anglos are content with the likely outcomes of those races. It

does not indicate that Anglos, with their much larger num-

bers, do not control the district, or that they would not turn

out to vote in Texas’s open primary in the relevant scenario,

ie., if a candidate whom they opposed but who was the candi-

date of choice of the African American voters was running.

As the district noted, it “ha[d] no measure of what Anglo turn-

. Appellants do not challenge the district court’s finding that “there is no

serious dispute but that Blacks and Hispanics do not vote cohesively in primary

elections,” J.S. App. 99a; see id. at 111a, and appellants do not argue that the

district court erred in precluding on that basis a claim that the State’s 2003 pian

diluted the vote of the two groups together, even assuming such aggregation

were permissible under Section 2. See Growe, 507 U.S. at 41 (assuming without

deciding that aggregation is permissible under Section 2).

17

out would be in a Democratic primary if Frost were opposed

by a Black candidate.” /bid.*

c. In short, the district court reasonably found that Afri-

can American voting strength in District 24 was insufficient

to enable African Americans to control the district. Given

that African Americans comprised less than 22% of the voting

age population, that conclusion is not surprising. Because the

district court’s finding was fatal to appellants’ expansive the-

ory of how they could satisfy the first Gingles precondition,

the district court correctly rejected appellants’ Section 2

claim concerning old District 24.

B. This Case Does Not Require The Court To Decide Whether

A Minority Group Must Always Show That It Is A Major-

ity To Establish A Section 2 Claim

In challenging the district court’s Section 2 ruling with

respect to District 24, appellants claim that the district court

erred in grounding its decision on the understanding that “the

only districts that ‘count’ under Section 2* * * are those in

which one minority group constitutes a mathematical majority

of the population.” 05-276 Appellants Br. 16, 33-43. Appel-

lants’ argument is mistaken. Appellants’ own expansive the-

ory of how a less-than-22% district could satisfy the first

Gingles precondition depended on factual premises the dis-

trict court rejected, and the district court accordingly did not

base its decision on a simple application of the 50% rule. It is

therefore unnecessary for the Court to decide in this case

whether a minority group must always establish that it repre-

sented an absolute majority of voters to invoke Section 2.

® To be sure, minority voters may vote for candidates of a different race or

ethnicity. See De Grandy, 512 US. at 1027 (Kennedy, J., concurring). In this

case, however, the district court found that appellants had not shown that Frost

could be regarded as the candidate of choice of African-Americans for purposes

of analyzing their Section 2 claim. That finding is not clearly erroneous. See

p. 14, supra.

18

1. Avoiding a definitive ruling on the 50% rule here would

be consistent with the Court’s past practice. In Gingles, this

Court held that a precondition to stating a Section 2 claim is

that “the minority group must be able to demonstrate that it

is sufficiently large and compact to constitute a majority in a

single-member district,” 478 U.S. at 50 (emphasis added), and

the Court has repeatedly reiterated that requirement in sub-

sequent cases. See, e.g., Georgia, 539 U.S. at 478; Abrams v.

Johnson, 521 U.S. 74, 91 (1997); De Grandy, 512 U.S. at 1006;

Growe, 507 U.S. at 40-41. Nonetheless, in Gingles the Court

also stated that it had “no occasion to consider whether § 2

permits, and if it does, what standards should pertain to, a

claim brought by a minority group, that is not sufficiently

large and compact to constitute a majority in a single-member

district.” 478 U.S. at 46 n.12; see id. at 89 n.1 (O’Connor, J.,

concurring in the judgment). The Court similarly reserved

the question in Growe. See 507 U.S. at 41 n.5. In Voinovich,

the Court assumed, without deciding, that such claims were

possible. See 507 U.S. at 154. Likewise, in De Grandy, the

Court “assume[d] without deciding” that Gingles could be

satisfied “even if [members of the minority group] are not an

absolute majority of the relevant population.” 512 U.S. at

1009.°

2. The position of the United States on this issue over the

years underscores the wisdom of resolving the issue in a con-

crete setting that clearly poses the issue. In Votnovich, the

* In Parker v. Ohio, 263 F. Supp. 2d 1100 (S.D. Ohio 2003), this Court

summarily affirmed the decision of the three-judge court rejecting a Section 2

challenge to a state apportionment plan. 124 S. Ct. 574 (2003). The district

court rejected the argument that the first Gingles precondition could be met

where “a distinct [minority] group cannot form a majority, but they are

sufficiently large and cohesive to effectively influence elections,” 263 F. Supp.

2d at 1104, and appellants challenged that ruling. See 03-411 J.S. at i, 13-23.

Appellees defended the district court’s ruling, see 03-411 Mot. to Aff. at 14-19,

and also advanced alternative bases for affirmance. See id. at 19-24.

19

United States stated that it “agree[d] with those courts that

have rejected” the assumption “that Section 2 requires cre-

ation of districts in which minorities are demonstrably not a

majority of the voting age population-”--Br. for the U.S. as

Amicus Curiae at 16, Voinovich v. Quilter (No. 91-1618). As

the government explained, “{uJniess a minority group can

demonstrate that it could constitute a majority in a single-

member district so as to enable it to elect its preferred candi-

dates, the alleged fragmentation of that group’s voters into

multiple districts could not possibly have denied that group an

equal ‘opportunity * * * to elect representatives of [its]

choice.’” Jd. at 11 (quoting 42 U.S.C. 1973(b)); see id. at 11-12

n.6 (citing cases). Similarly, in Growe, the United States ar-

gued that, “[a]bsent proof that the plaintiff minority group

could form a majority of a single-member district, that group

‘cannot claim to have been injured by’ the challenged

districting scheme.” Br. for U.S. as Amicus Curiae at 7,

Growe v. Emison (No. 91-1420); see also id. at 11 & n.6.

The United States has also recognized that the majority

requirement of the first Gingles precondition might be re-

laxed in certain specific situations. First, “the requirement

that the minority group be sufficiently numerous and compact

to constitute a majority of a single-member district may be

relaxed where intentional racial discrimination has been

shown.” 91-1420 U.S. Br. at 12 n.6 (citing Garza v. County of

Los Angeles, 918 F.2d 763, 770-771 (9th Cir. 1990), cert. de-

nied, 498 U.S. 1028 (1991)). See U.S. Br. in Opp. at 21, County

of Los Angeles v. Garza (Nos. 90-849 & A-422). Second, the

government has argued that a “flat 50% rule” was inappropri-

ate when the minority group was “compact, politically cohe-

sive, and substantial in size yet just short of a majority.” Br.

for the U.S. as Amicus Curiae at 11, 13, Valdespino v. Alamo

Heights Indep. Sch. Dist. (No. 98-1987) (emphasis added). In

’ that situation, the government explained, a “small amount of

20

consistent crossover voting” might give “the minority voters

the potential to elect their representative of choice.” Jd. at 11;

see id. at 12 n.3 (“[alt some point, of course, the amount of

crossover voting may be sufficiently substantia] that it would

not be possible to sustain a finding that voting is racially po-

larized or that the majority votes as a bloc to defeat the candi-

date preferred by minority voters”)."” But this case involves

neither claims of intentional discrimination, nor the kind of

near-50% borderline case alluded to in the Valdespino brief.

Under the circumstances, there is no need for the Court to

resolve the validity of a strict 50% rule."

3. Permitting Section 2 vote-dilution claims when, as here,

a minority group is substantially less than a majority of the

voters in an alternative district raises a number of potentially

The plaintiff minority group in Valdespino represented “48% of the

CVAP.” 38-1987 U.S. Br. at 13. In its brief, the government repeatedly

referred to the fact that the minority group was “just short of a majority.” /d.

at 11; see id at 10 (“slightly less than 50%”). The United States also filed an

amicus brief in Perez v. Pasadena Indep. Sch. Distr. (No. 98-1747), which

involved similar circumstances, in which the government reiterated its position

in Valdespino. See 98-1747 U.S. Br. at 7-8 (“(pletitioners have shown that

Hispanics would be very close to a majority of the CVAP in their demonstration

district”). In two appellate court briefs, the United States took the position

that plaintiffs need not show that they would constitute 50% of a demonstration

district to prevail under the first Gingles precondition. See Br. for the United

States at 35, Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990) (No.

92-749), cert. denied, 498 U.S. 1028 (1991); see also Br. for United States at 12-

17, Campos v. City of Houston, 113 F.3d 544 (5th Cir. 1997) (No. 90-849).

'l The large majority of lower courts that have addressed the issue have

embraced the 50% rule. See, e.g., Hall v. Virginia, 385 F.3d 421, 429-431 (4th

Cir. 2004), cert. denied, 125 S. Ct. 725 (2005); Valdespino v. Alamo Heighis

indep. Sch. Dist., 168 F.3d 848, 852-853 (5th Cir. 1999), cert. denied, 528 U.S.

1114 (2000); Cousin v. Sundquist, 145 F.3d 818, 828-829 (6th Cir. 1998), cert.

denied, 525 U.S. 1138 (1999); McNeil v. Springfield Park Dist., 851 F.2d 937,

943-945 (7th Cir. 1988), cert: denied, 490 U.S. 1031 (1989); but see Metts v.

Murphy, 363 F.3d 8, 11-12 (1st Cir. 2004) (en banc) (declining “to foreclose the

possibility” that a Section 2 claim might be viable where the minority is less

than 50%).

21

significant concerns. First, when, as here, the minority group

is substantially less than a majority and depends on a high

level of crossover voting to show that it nonetheless exercises

electoral control (see J.S. App. 1lla), it is doubtful that the

plaintiff can show that racially polarized voting—as opposed

to other local factors or conditions—has led to a decrease in

its electoral opportunities. Such crossover voting indicates to

the contrary that a district may not suffer from the kind of

race-based voting that led to the enactment of the Voting

Rights Act. See Metts v. Murphy, 363 F.3d 8, 12 (1st Cir.

2004) (“To the extent that African-American voters have to

rely on cross-over voting to prove that they have the ‘ability

to elect’ a candidate of their choosing, their argument that the

majority votes as a bloc against their candidate is undercut.”);

see id. at 13-15 (Seyla, J, joined by Torruella, J., dissenting)

(“{a] showing of majoritarian bloc voting is structurally incon-

sistent with” a minority group’s “reliance on a high level of

crossover voting” to assert electoral control)."”

Second, recognizing such claims .inder Section 2 could com-

promise needed flexibility that the Court has recognized in an

analogous setting under Section 5 of the Voting Rights Act.

'? Indeed, efforts like appellants’ to hypothesize control with relatively low

percentages of CVAP require assumptions about voting behavior that suggest

other factors are at work. Under appellants’ theory, a minority group can

control a district because it constitutes a majority in the Democratic primary

even if it is only 22% of the population. The theory relies on the proposition

that white Democrats, who do not control the district, would prefer the

minority candidate of choice in the general election. But if there were suffi-

cient white voters willing to carry the district for the candidate of choice of a

22% minority in the general election, voting in the district would not be racially

polarized in the first place, but instead would be explicable on the basis of non-

racial factors. Moreover, in light of the open primary system in Texas, appel-

lants’ theory appears to assume that at the same time that Democratic voters

vote on racial lines in an open Democratic primary, Republican voters would

not be motivated to cast votes-along similar racial-lines in the open Democratic

primary.

| 22

In Georgia v. Ashcroft, the Court rejected the argument that

the States are required to maximize the number of majority-

minority “safe” districts and, instead, held that “Section 5

leaves room for States to use * * * influence and coalition

districts” as well, “even if it means that in some of those dis-

tricts, minority voters will face a somewhat reduced opportu-

nity to elect a candidate of their choice.” 539 U.S. at 483, 489-

490; see id. at 482 (“Section 5 gives States the flexibility to

choose one theory of effective representation over another”).

Permitting minority groups with as little as 22% of the popu-

lation to pursue Section 2 litigation in the wake of a redistrict-

ing could discourage States from redistricting in ways “that

would truly ‘maximize’ minority electoral success,” Gingles,

539 U.S. at 480 (O’Connor, J., concurring in the judgment),

such as by moving minority voters from 22% districts to dis-

tricts in which they have a greater population and greater

chance of success or pursuing similar efforts.

Third, if the Court recognized the viability of Section 2

claims where, as here, the plaintiff group was substantially

less than a majority of the voters, then a great many districts

could be subject to fact-intensive litigation under Section 2.

At a minimum, such a ruling could substantially increase the

volume and nature of Section 2 litigation. Cf. McNeil v.

Springfield Park Dist., 851 F.2d 937, 947 (7th Cir. 1988)

(“Courts might be flooded by the most marginal Section 2

claims if plaintiffs had to show only that an electoral practice

or procedure weakened their ability to influence elections.”).

Likewise, to the extent that plaintiffs could pursue Section 2

claims with as little as 22% of the voting population, it would

be difficult to establish an obvious end point and judicially

administrable standards for recognizing vote-dilution claims

by minority groups with only a small fraction of voters. Cf.

Holder v. Hall, 512 U.S. 874, 885 (1994) (plurality); id. at 889-

890 (O’Connor, J., concurring in the judgment).

23

Fourth, extending Section 2 beyond its intended reach not

only could disrupt the traditional workings of our representa- -

tive democracy, but could inflict other harms. The Voting

Rights Act was intended “to hasten the waning of racism in

American politics,” De Grandy, 512 U.S. at 1020, not to en-

sure that “race predominates in the redistricting process,”

Miller v. Johnson, 515 U.S. 900, 916 (1996), a situation that

would raise constitutional concerns that Congress presumably

seeks to avoid. See Georgia, 539 U.S. at 490-491 (“[T]he Vot-

ing Rights Act, as properly interpreted, should encourage the

transition to a society where race no longer matters: a society

where integration and color-blindness are not just qualities to

be proud of, but are simple facts of life.”). If Section 2 pre-

vented legislatures from redrawing districts in which minori-

ties constituted only a small fraction of voters, then race could

become a predominant factor in a great many redistricting

decisions.

4. Contrary to appellants’ contention (05-276 Appellants

Br. 16, 39), the district court in this case did not rest its ruling

on a “mechanical” application of the 50% rule. Indeed, if the

court had done so, it could have simply recited the undisputed

fact that African Americans comprise less than 50% of the

voting age population in District 24, and ended its inquiry.

The district court instead stated that “the facts of this case

offer no occasion to decide if there is a tolerable deviation

from the rule that a minority must demonstrate that * * * it

had the potential to elect a candidate of its choice by proof

that it could constitute 50% of the district.” See J.S. App. 96a.

The district court’s factual findings with respect to electoral

control resolve the District 24 vote dilution claim without re-

gard to the 50% rule.

Accordingly, this case does not require the Court to decide

whether a plaintiff minority group must always show that it

represents a majority of the voting age population in a district

24

to state a claim under Section 2. The Court should therefore

defer passing on that issue until it is faced with a case in

which resolution of the question would likely be dispositive,

such as a case in which the plaintiff minority group was only

slightly less than a majority in the demonstration district.

Such a case would offer the Court the benefit of a concrete

factual setting in which to resolve that issue.”

II. SECTION 2 DID NOT REQUIRE THE STATE TO CRE-

ATE SEVEN MAJORITY-HISPANIC DISTRICTS IN

SOUTH AND WEST TEXAS

A. Appellants Failed To Establish That Seven Effective

Majority-Hispanic Districts Could Be Drawn In South

And West Texas

Appellants GI Forum, et al., challenge the State’s 2003

plan—as they did the court-ordered 2001 plan upheld in

Balderas—on the ground that it violates Section 2 because it

creates six, rather than seven, majority-Hispanic districts in

South and West Texas. This Court rejected essentially the

same claim in Balderas. See 536 U.S. at 919. To the extent

that the Court believes it necessary or appropriate to revisit

this issue, the district court properly rejected that claim be-

low.

'3 Because the record supports the district court’s conclusion that appellants

failed to meet the first Gingles precondition, there is no need for the Court to

examine the other preconditions. In any event, as noted above, the district

court also properly determined that appellants had not clearly demonstrated

that the African American voting age population is cohesive. See J.S. App.

112a. In addition, the district court stated that the relatively high level of white

crossover voting (30.75%) established the “absence of Anglo bloc voting under

Gingle’s third precondition.” /d. at 1lla; see J.A 260-262. Moreover,

appellants have also failed to establish that they could prevail under a “totality

of the circumstances” analysis, which provides an independent reason for

rejecting their Section 2 challenge to District 24.

25

1. Appellants introduced a plan (Plan 1385C) in support of

their claim, which outlined seven districts in South and West

Texas with a majority-Hispanic CVAP. See 05-439 J.S. App.

241 (Plan 1385C map); see also J.S. App. 133a n.136 (Hispanic

CVAP percentages). Both that plan and the State’s 2003 plan

have “the same number of districts”—six—“in which Latinos

equal or exceed 55% of the citizen voting age population.” Jd.

at 132a; see id. at 133a n.136. All six of those districts in the

State’s plan would effectively permit Hispanics to elect the

candidate of their choice. See id. at 133a-148a. Thus, appel-

lants’ claim required proof that the seventh district in their

plan would effectively function to permit Hispanics to elect

the candidate of their choice. Without such proof, a court

would have no basis to conclude that the State’s plan abridged

the opportunity of Hispanics in violation of Section 2.

2. The district court found that the seventh district in the

GI Forum plan would not effectively function as a Hispanic

opportunity district. That district “has a Hispanic citizen

voting age population of only 50.3%.” J.S. App. 130a. The

court found that “because of the lower turnout of Latino vot-

ers, a low majority of the Hispanic citizen voting age popula-

tion does not produce an effective Latino opportunity district.”

Id. at 131a. Appellants therefore had not shown that “seven

{Hispanic-majority] districts * * *, if they could be drawn,

would function effectively as Latino opportunity districts.”

Id. at 133a. The court thus “reject[ed] the claim * * * that § 2

demands a seventh Hispanic citizen voting age population

majority district in South and West Texas.” /bid.

The district court’s finding was well supported. Appellants

themselves had argued that three of the districts in the

State’s plan—each of which had a Hispanic CVAP of more

than 55%—would not provide effective opportunity for His-

panics. J.S. App. 13la. Dr. Jerry Polinard, a political scien-

tist, testified that “you become comfortable with opportunity

26

districts once you break into those 60%-plus ranges.” Jd. at

131a n.134. Dr. Allan Lichtman, another political scientist,

testified that lowering the Hispanic CVAP in a district may

approach “the danger zone” (or opportunity, even if the His-

panic CVAP remains over 50%. Jbid. Congressman Hinojosa

testified that “because of the low [relative] turnout,” “in order

to win an election, you need to have about 57, 58% or higher

Hispanic voter age population.” /bid. Congressman Gonzalez

testified that a mere majority in numbers “doesn’t translate

to having an effective voice or ability to elect someone of your

choice” because of relatively low Hispanic registration and

turnout figures. /bid. Combining that testimony with the

bare-majority 50.3% CVAP, the court found that appellants’

seventh district would not “function effectively as [a] Latino

opportunity district{].” Jd. at 138a. That finding was not

clearly erroneous, and it alone defeats appellants’ claim.

3. Appellants argue (05-439 Appellants Br. at 46) that evi-

dence shows that the 50.3% district in their plan (District 28)

would elect the Hispanic candidate of choice, and that the

district court improperly “relied upon the testimony of GI

Forum’s expert witness to conclude that the State Plan con-

tained six Latino opportunity districts while ignoring those

portions of his analysis showing that the GI Forum plan con-

tained seven Latino opportunity districts.” Jd. at 45-46. A

trial court, however, is permitted to accept some conclusions

and reject others advanced by an expert witness. In addition,

as noted, the challenged finding was based not just on one

witness’s evidence, but on a variety of evidence introduced by

a number of different witnesses. Moreover, there was nothing

inconsistent in the district court’s conclusion that the six dis-

tricts in the State’s plan—with 55% or more Hispanic CVAP

—would function as opportunity districts, while the bare-ma-

jority 50.3% district would not. Appellants fail to show that

that dispositive finding was clearly erroneous.

27

B. In Any Event, The More-Than-Proportional Electoral Op-

portunities For Hispanics In South And West Texas Sup-

port The District Court’s Rejection Of That Claim

There is an additional reason why appellants’ claim fails.

In the seven-district South and West Texas area, Hispanics

constitute 58% of the CVAP. Six of the seven districts in that

area—or 85% of the districts—are majority Hispanic CVAP.

Based on that calculation, the district court concluded that

“proportionality is satisfied as to that area.” J.S. App. 129a.

1. In De Grandy, this Court addressed a similar argument.

Noting that “equal political opportunity” was “the focus of the

enquiry,” the Court stated that it did “not see how * * * dis-

trict lines, apparently providing political effectiveness in pro-

portion to voting age numbers, deny equal political opportu-

nity.” 512 U.S. at 1014. The Court observed that such pro-

portionality “would thwart the historical tendency to exclude

Hispanics, not encourage or perpetuate it,” and that there

accordingly were “no grounds for holding * * * that [the] dis-

trict lines diluted the votes cast by Hispanic voters” in the

challenged plan.” Jd. at 1014-1015. While not in itself

dispositive, the Court therefore concluded that “proportional-

ity * * * is obviously an indication that minority voters have

an equal opportunity.” Jd. at 1020. In addition, the Court

held that Section 2 does not require a State to maximize the

number of “safe” districts in an area. Jd. at 1016-1017.

De Grandy seriously undercuts appellants’ argument here.

While the minority groups in De Grandy enjoyed only “rough

proportionality,” 512 U.S. at 1023, Hispanics in South and

West Texas enjoy representation—six of seven districts—far

greater than their proportion of the population, no matter

how it is measured. Accordingly, appellants’ claim that they

are entitled to an additional majority-Hispanic district in

South and West Texas should be rejected.

28

2, Appellants argue that the State nonetheless violated

Section 2 by reconfiguring District 23 so that it had less than

a majority-Hispanic CVAP, even though at the same time the

State created a new majority-Hispanic district east of District

23 in South Texas. See 05-439 Appellants Br. at 36. In their

view, such a reconfiguration is prohibited by Shaw v. Hunt,

517 U.S. 899, 917 (1996), which stated that, “[i]f a § 2 violation

is proved for a particular area,” the “vote dilution injuries

suffered by [minority-group members in that area] are not

remedied by creating a safe majority-black district some-

where else in the State.” That contention is mistaken.

First, the Shaw rationale by its terms applies only if “a § 2

violation is proved for a particular area.” Appellants have not

proved a Section 2 violation for the area of District 23; to the

contrary, the question in this case is whether they can prove

a Section 2 violation for any area in South and West Texas,

and the greater-than-proportional representation of Hispan-

ics in that area strongly suggests that they cannot.

Second, Shaw rejected a claim that “once a legislature has

a strong basis in evidence for concluding that a § 2 violation

exists in the State, it may draw a majority-minority district

anywhere.” 517 U.S. at 916-917. In this case, by contrast, the

State does not assert that it could draw a majority-Hispanic

district anywhere in Texas to avoid an otherwise proven Sec-

tion 2 claim in South and West Texas. Rather, the state legis-

lature considered the southwest part of the State as a whole,

and it drew a series of districts there to achieve a variety of

purposes, including to provide representation for Hispanic

citizens. Although large in geographical size, the area con-

tains certain common features, such as the shared Mexican

border, a generally sparse population, and, indeed, a large

Hispanic population. Within that area, as the Court recog-

nized in De Grandy, “some dividing by district lines and com-

bining within them is virtually inevitable and befalls any pop-

29

ulation group of substantial size.” 512 U.S. at 1015. The

Court concluded in De Grandy that “(a]ttaching the labels

‘packing’ and ‘fragmenting’ to these phenomena, without

more, does not make the result vote dilution when the minor-

ity group enjoys substantial proportionality.” Jd. at 1015-

1016. So too here.

Finally, accepting appellants’ theory would require States

in many instances to freeze existing districting configurations

wherever majority-minority districts exist. Whenever the

State reconfigured districts in a particular area in such a way

as to decrease the minority population in one district while

increasing it in another, neighboring area, a plaintiff could

claim that the State had violated Section 2 with respect to the

former district. This Court has never suggested that Section

2 permanently freezes into place particular districting config-

urations or gives particular minority-group members veto

power over alternative districting configurations that may

well serve other legitimate state interests and, indeed, advan-

tage other neighboring minority-group members.

3. Appellants briefly argue that Hispanics in the State as

a whole constitute 24.5% of the CVAP, and that they therefore

are entitled to 24.5% of the 32 congressional districts in

Texas, or 7.82 districts. They contend that “(t]he District

Court should have concluded that eight opportunity districts

would provide proportional political representation to Latinos

in Texas and that the State plan falls well short of this num-

ber.” 05-439 Appellants Br. at 49. That argument is mis-

taken. In De Grandy, the Court was presented with a similar

statewide proportionality claim. But because the case before

it had in fact been “litigated on a smaller geographical scale”

than statewide, the Court held that it was appropriate to con-

sider proportionality on the same scale. 512 U.S. at 1022. The

district court reasonably relied on precisely the same reason-

ing here to conclude that South and West Texas is the appro-

30

priate geographic frame of reference in this case. J.S. App.

129a & n. 131.

Indeed, the South and West Texas geographic frame of

reference is particularly appropriate in this case. Hispanics

are so far over-represented in South Texas (and sufficiently

close to achieving proportionality statewide) that even use of

a much broader frame of reference than South and West

Texas would not alter the result here. As noted above, far

from an arbitrarily defined region of the State, South and

West Texas has a variety of characteristics that make it an

appropriate frame of reference for Section 2 analysis.

CONCLUSION

The Court should affirm the district court’s judgment that

the State’s redistricting plan does not violate Section 2 of the

Voting Rights Act.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

WAN J. Kim

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

DAVID K. FLYNN

LISA J. STARK

NATHANIEL S. POLLOCK

Attorneys

FEBRUARY 2006

FILED

FEB 1 - 2006

ICE OF THE CLERK

SUPREME COURT, U.S.

In the Supreme Court of the United States

¢

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.,

Appellants,

v.

RICK PERRY, et al., Appellees.

TRAVIS COUNTY, TEXAS, et al., Appellants,

v.

RICK PERRY, et al., Appellees.

EDDIE JACKSON, et al., Appellants,

Vv.

RICK PERRY, et al., Appellees.

GI FORUM OF TEXAS, et al., Appellants,

Vv.

RICK PERRY, et al., Appellees.

+

On Appeal from The United States

District Court For the Eastern District of Texas

Y

BRIEF AMICUS CURIAE OF THE AMERICAN

LEGISLATIVE EXCHANGE COUNCIL AND FREE

ENTERPRISE COALITION IN SUPPORT OF APPELLEES

°

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

& Free Enterprise Coalition

© OW

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

QUESTIONS PRESENTED

Does Article I, § 4 prohibit state legislatures and/or

voters exercising their reserved legislative power through

the initiative, from redistricting more than once in a decade,

thereby eliminating the possibility of political remedies to

post-census partisan gerrymanders, and increasing the

frequency of lawsuits challenging such gerrymanders?

Does Article I, § 4 require federal court-ordered

redistricting plans to remain in effect during an entire

decade, insulated from any changes by subsequent

redistricting legislation enacted by the Legislature or the

voters of the state by initiative?

TABLE OF CONTENTS

Page

i, | a: i

RRs SF CREED thsccnssntemsnsattnccsensinntnistanesctnirnaaaniv ii

Se RAFT ce ccccestocenennenetennintesivnnaniienanes iv

STATEMENT OF INTERESTS OF AMICUS CURIAE............ 1

INTRODUCTION AND SUMMARY OF ARGUMENT......... 3

SAIS ccnrcccsicsesnicininieitestieitidenniciadiaccasmmsstbticaiiiaiaaiinieiad 5

I. STATE LEGISLATURES HAVE

CONSTITUTIONAL AUTHORITY TO

REDISTRICT MORE THAN ONCE PER

ae eel rcvusinintentnacdivinnicesiniianenniientiiesibtedpiabenaitinensiees 5

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 scinicsershisctiptisieticichebnichiiasaaacndiibiiacinaatnsiitaiiiliniadss 9

Il. LIMITING REDISTRICTING TO ONCE PER .

DECADE IS AT LEAST AS LIKELY TO

ENTRENCH PARTISAN GERRYMANDERING

DEB TD TRIG sticerscrrsimamnenisintnasscestatianeinases 15

A. Prohibiting Redistricting More Than Once

Per Decade Would Deprive States Of An

Important Tool For Combating Egregious

SOON ores cereiccenivensectneenitinnneanenneamionnecines 15

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

Stymie

Redistricting Reform Efforts By

RR RTETE ES Sy Ane Or eae

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. ........c.sesceseesssceesesseseees

CONCLUSION

POSER EERE EEE EERE TEESE EEE EEE EEE EEE EEEEEEE EERE EEEEE EET EEE EE EEES

TABLE OF AUTHORITIES

Page

CASES

Assembly 0. Deukmejian,

SD PDE SOD Cae. SGD ocsececestecssnssnsninnetinsivinninasestsctenticitin 16

Badham v. Eu,

694 F. Supp. 664 (N.D. Cal. 1988) ..........ess:ereseees 16, 17, 21

Branch v. Smith,

SOB CD, BG I ciscoseccsscseveiitinhcsiieieniieiiianiaiaiiail 9

Buckley v. Am. Constitutional Law Found.,

SED U.S, 208 GD) cocececcososneeresorecenanmniinienmnenamasnsiiatiitiies 18

Buckley v. Hoff,

243 F. Supp. 873 (D. Vt. 1965) .....-sssssessecossssescsssssesseecesnseses 7

Burton ex rel. Republican Party v. Sheehan,

793 F. Supp. 1329 (D.S.C.), vac’d on other grounds

sub. nom, Statewide Reapportionment Advisory

Comm. v. Theodore, 506 U.S. 951 (1992)......scscsssereseseseees 14

Bush v. Vera,

BEF UD Fa CIID cicccrnecscscsersinemmnsionsinisiaivntiamnnpeettin 11

Chapman ov. Meier,

* CGS 4 Ce evinsicsivcticicintenittaicliiaiaaiel Daialsanesenpoiednein 9,10

Citizens Against Rent Control v. City of Berkeley,

SBE US. FID CIEE) ccociceseccsscrssniizsisinscnsiihstitmmmisiominin 18

Coleman v. Thompson,

SOE US. T4B (GGG) -ccccccenseresecncesesnsonosessesocimomenssensncinintaites 10

Colleton County Council v. McConnell,

201 F. Supp. 2d 618 (D.S.C. 2002) ........-.sccccsssesereneneneneees 13

Connor v. Finch,

SE US, GF (GFF) wrcceccsneassestntenstnsnemsowniininsnioassinintaian 11, 20

Daly v. Hunt,

SO PBb 12ES COs Cie. THO crccccccccnsesseseesccnemnvenctennntaletisinies 6

iv

Davis v. Bandemer,

SE nsceincitentcanemtcnenenennsusepetngnemencinsonion 21, 22

French v. Boner,

786 F. Supp. 1328 (M.D. Terin. 1992)......s..ssessseessvessneesnnee 7

Gaffney v. Cummings,

I osetia cdcenbcosenanasbsducsngnemtentnnenecncen 21

Garza v. County of Los Angeles,

918 F.2d 763 (9th Cir. 1990), cert. denied,

IIE csciehhinnsinjncscnccnntetnesentccenepscetnnsminesecstens 7

Georgia v. Ashcroft,

chat rstceepeicintententccntannsmmmneesentevetnenemsen 11

Gonzalez v. Monterey County,

808 F. Supp. 727 (N.D. Cal. 1992) .........cscscereseseseeneneneees 12

Gregory v. Ashcroft,

EEE Te LAE ET 10

Grisbaum v. McKeithen,

336 F. Supp. 267 (E.D. La. 1971) .......ccccesesesesseseseneneenenes 10

Growe v. Emison,

BPD rnceenssiresnnctccensecnmsnenseneasenstrmnnenensenees 9,10, 12

Harmison v. Ballot Comm'rs,

SL REPU s WUD SRPUNED snssnsnsirecceserqceinscsssszsteenevsonsinnnsnemnese 8

_ Harris v. Shanahan,

I, TUTTI artesirinhenceseeestactesennbincmenpemeaneeteness 7

Henderson v. Perry,

399 F. Supp. 2d 756, 2005 U.S. Dist. LEXIS

EEN SID SEED cxccerscnsnensnsinevnensscnensteenensesensanacee 14,15

Johnson v. Mortham,

915 F. Supp. 1529 (N.D. Fla. 1995).........:ssssesssssssessessssees 14

Johnson v. Mortham,

926 F. Supp. 1460 (N.D. Fla. 1996), aff'd

sub nom., Johnson v. Smith, 132 F.3d 1460

GE Ge SIG cccsccusesorssncrsctiticneceanentantstatseness 6,7, 10, 11

Jones v. Freeman,

BED Be BEG GR. TOG cccecececsscsesscsssscscsssocsvenensntensanes 7,8

Jordan v. Winter,

604 F. Supp. 807 (N.D. Miss. 1984) ..........-.sesscesnereseneees 14

Klahr v. Williams, .

SSD F. Seapip. $22 (D. Asritt. 1972) .2...220c.c.cscsccccscecsscccscssnseses 7

Legislature of the State of Cal. v. Deukmejian,

RG TF OE, TO ceiesesctticecenioseinetenics 7,16, 17

New York v. United States,

SBOE CI ses ccrccsersncssecnscuseseensssenipeanernsnemenssseseoes 10

Ohio ex rel. Davis v. Hildebrandt,

ER A, Ba I eccscresnscemnasinnntcrnnsstentinemenamaninen 18

People ex rel. Mooney v. Hutchinson,

es BOD Ge Ca ecetevtnecseencsseccenzsenentinetneancesemanmsoninene 8

People ex rel. Salazar v. Davidson,

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

nom., Colo. Gen. Assembly v. Salazar, 541

SR Ba Ga esccccseceszcnscnssesenstserecceniesineninnsccenmmemnnamemantns 7

Principality of Monaco v. Mississippi,

8 oo) 0d) 10

Reynolds v. Sims,

Br ey I itcnrintinenepunitnninemitiianbinnenns 5, 6, 12, 14

Scott v. Germano,

ee TE, Ge CRB cercccceccscescnsczsrnennenssvtienesensvienmeemajasnsnaneen 10

Session v. Perry,

298 F. Supp. 2d 451 (E.D. Tex. 2004) ........ccccseeseneeeeees 5, 13

Springer v. Phillipine Islands,

TIT SB. TED CT crcnitaessttncncsconatecesineeremennanammnnenis 10

Smiley v. Holm, ¢

Ye Dl 5,18

Upham v. Seamon,

Sg ee 10, 11, 12

Vera v. Bush,

933 F. Supp. 1341 (S.D. Tex. 1996) ..........-sesereseee- 11, 13, 14

Vera v. Bush,

980 F. Supp. 251 (S.D. Tex. 1997) ......ccsscesseessensnrenees 13, 14

Vieth v. Jubelirer,

eee 6, 20, 22

Wesberry v. Sanders,

se Se ccpcanccsesicencecstnsiiienptieesciramansianenanupiiipigiiaanimniees 5

Whitcomb v. Chavis,

ee I t ccicinctatenescecnisinsiitninnicntaapinanestiipinnianeatiinl 6, 21

White v. Weiser,

ee Be ete serinescnscciericicceniitsninnitiimpensetiaiitiiaien 13, 21

Wise v. Lipscomb,

ee acetpncceiecctentsnitiipeimnpscinainitatintaapeainnssinniiing 13

CONSTITUTIONS

WS. COREE. O80. 0, & 4 ..n.ncccacccccsccecsososcnssencnsecocosoconsesesess passim

ON 8

CE GE Gs Bi i G ccccnrncecsececicntececenentcinnenitsinatbenatinten 8

EE, CI IG sci icctercilacesiiteiaicntincianiiteneneil 8

Fe | ee 8

a es OU, Te Be cecepennssincesnneinicinnninenegnininntinatiansions 8

vii

STATUTES & RULES

i 5

Ca ER Meee LEG ED 5

Idaho Code § 72-1501 (2005)qcescccsnsscsnesneusenesearnerneee 8

21 Maine Rev. Stat. Arn. § 1206 (2005) ..cssccceecsessereee 8

NJ. Stat. § 19:46-12 (2005) .ocsscscssessneesesnessensone oa

Tenn. Code Ann. § 216-102 (2005) sccscascse-esstscesnesern 8

Wash. Rev. Code § 44.05.030 (2005) ..coc.csssssssesesssesesseen 8

Wash. Rev. Code § 44.05.110 (2005) csscscvsetsetsesesssesnen 8

ee IRE so ARR EY SSS PAE gE FE 1

LEIDER PINE. 1

MISCELLANEOUS

1 A. de Tocqueville, DEMOCRACY IN AMERICA

eI OE, SG eecscscicrcsssntesenseerpeeemersinmnccemeiageen 4

Adam Nagourney, States See Growing

Campaign for New Redistricting Laws, N.Y.

TEER, BUD. 5, SIRE, G0 Ak eereceereennmcreeeneeensees 17

Clark Benson, Substantial Political

Consequences, A Practitioner's Perspective on

Redistricting, EXTENSIONS (Carl Albert

Cong. Stud. & Research Ctr. Fall 2004), at

http:/ / www.ou.edu/special /albertctr/ex

tensions /fall2004/ Bernsen. html............c:sesesseesssereeserees 11

Common Cause, Two Other Groups Back

Redistricting Measure, ASSOC. PRESS, Oct. 5,

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

Battle to Change Election Process, N.Y.

TIMES, Aug. 10, 2005, at A12 .............c.rerssssersssssrssssessees 19

Dean E. Murphy, Schwarzenegger Enters Debate

Over Redistricting In Ohio, N.Y. TIMES, Oct.

SPT AMIE cnpincscccnindiinetlinntesininintiasipeheensnitaliiambatiansidnrs 19

Douglas Johnson, et al., RESTORING THE

COMPETITIVE EDGE: CALIFORNIA'S NEED

FOR REDISTRICTING REFORM AND THE

LIKELY IMPACT OF PROPOSITION 77 (Rose

Institute 2005), at http://rose.claremont

mckenna.edu/ redistricting /redistricting.a

GID .asoccenessocsssvstancsvenscqcocaesstenneenseecnseesesensesenneeSeCeeseneesees 18, 19

Editorial, Districts, LANSING ST. J., Apr. 6,

8 REESE ane a ero 19

Editorial, Our Election Guide, L.A. TIMES, Nov.

~ (REI EseIIITIEIET siconitccennigiiaitincitcementiacinelaiblipiniimtiiuattimaaisadinieatased 18

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 .........0.+000+ 19

FER. SED, 200s Carag, (2008) .22.2ccccrcccrcnscccccccccssseosecnecscssenescss 8

H.R. 2642, 109th Comg. (2005) .....-cccecsecsssssnsseeneenenesnenennsncenees 8

H.R. 4094, 109th Comg. (2005) ..ccoccssseessnsesessneseesnsneeesnseee -

John H. Fund, Beware the Gerrymander, My

Son, NAT'L REV., Apr. 7, 1989........cecssssssssseseerserenees 16, 17

Michael Barone, THE ALMANAC OF AM.

PRI FTE GOI) seceverczcssecsscssocoscernemesevetoveresesvaninenens 15

Paul Thornton, Editorials Elsewhere:

Endorsements Elsewhere, L.A. TIMES, Nov. 8,

ERE Ee rin ane NEN Se 18

ix

Richard H. Pildes & Richard G. Niemi,

Expressive Harms, “Bizarre Districts,” and

Voting Rights: Evaluating Election-District

Appearances After Shaw v. Reno, 92 MICH. L.

BT. GEE, SIS CRI) eccccrcesectsentcettnsstovmeneevenenensnsanmenseseees 16

Rosemarie Zagarri, THE POLITICS OF SIZE:

REPRESENTATION IN THE UNITED STATES, |

EFF I BE Pecrrctccsscrctsnncsemasntesqserescssenernmnine 9

STATEMENT OF INTERESTS OF AMICUS CURIAE

The American Legislative Exchange Council (“ALEC”)

is the nation’s largest nonpartisan individual membership

association of state legislators. ALEC has more than 2,400

members, comprising approximately one-third of all state

legislators in the United States. Its mission is to discuss,

develop, and disseminate public policies that expand free

markets, promote economic growth, limit government, and

preserve economic liberty. It is also generally concerned

with matters of legislative accountability and governmental

structure. ALEC serves as a “think tank” on many specific

legislative issues and provides for its members a variety of

additional resources, including a number. of publications, a

website (www.ailec.org), and affiliation with more than 300

corporate and private foundation members. ALEC’s interest

in this proceeding is the protection of the state legislatures’

authority over redistricting, thereby promoting the vital

principle of federalism (ALEC represents state legislators)

and a sound separation of powers (ALEC represents state

legislators) in the areas of redistricting and elections—

domains traditionally entrusted to the care of the state

legislatures. U.S. CONST. art. I, § 4.1

The Free Enterprise Coalition (“FEC”) is a non-profit

organization incorporated in the State of Virginia. The

Coalition’s purpose is to engage in activities that promote

policies that are supportive of the free enterprise system.

The Chairman of FEC is Robert L. Livingston. For the past

two years the coalition has concentrated on ensuring fair

' As required by Rule 37.3(a) of this Court, amicus 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, amicus curiae state that none of the parties authored this brief in

whole or in part, and no person or entity, other than the amicus curiae,

its members, or its counsel, made a monetary contribution to the

preparation or submission of the brief.

1