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

system, may treat the parties symmetrically and thus fairly.’

Yet symmetry can exist (or not exist) in all types of electoral

systems. Because most electoral systems in the United States

are single-member districts that are winner-take-all, in

practice they normally give a “bonus” of varying sizes (above

proportionality) in seats to the party that wins a majority of

the votes across a state. This common pattern does not

violate the symmetry standard.‘ Nothing in the symmetry

standard prevents States, either directly or because of the way

in ‘which districts happen to be drawn, from giving a greater

percentage of seats to the victorious party than that party’s

total vote proportion. Indeed, in States where the plan is

“fair” either because of bipartisan redistricting or a neutral

districting commission, symmetry ‘exists in complete

harmony with the “bonus” given to the majority party due to

the United States’ single-member district system.

> Electoral systems that mandate versions of proportional represen-

tation do not necessarily produce partisan symmetry. See Browning &

King, Democratic Representation, 81 Am. Pol. Sci. Rev. at 1257 Fig. 2

(modeling bias in a proportiona! representation system). Many European

nations that use proportional representation have electoral systems that

show partisan bias. See King, Electoral Responsiveness, 15 Leg. Stud. Q.

at 174 & Toi. 3.

* Partisan bias is the deviation from partisan symmetry. A separate

concept is “electoral responsiveness.” Electoral responsiveness indicates

how responsive changes in seat outcomes are to changes in voter

preferences. Electoral responsiveness, also referred to as the “bonus” for

the majority party, the “swing ratio,” or the “degree of representation,”

measures how much the seat division between the parties change as the

vote proportions change. A purely proportional system is one in which a

one percent increase in the votes for a party leads to a one percent increase

in seats for that party. In the United States, a one percent increase in votes

for a party normally leads to a two to three percent increase in seats.

Under the symmetry standard, there is nothing necessarily unfair about

one party winning a greater proportion of seats than the other. An

electoral system may have any degree of partisan bias, no matter what

level of responsiveness happens to exist. See Browning & King, Demo-

cratic Representation, 81 Am. Pol. Sci. Rev. at 1254-58 & 1259 Fig. 3.

9

The guiding test of the symmetry standard is whether the

map treats similarly-situated parties equally—whether both

parties have the opportunity to capture the same amount of

seats, if they receive a particular percentage of the statewide

vote. That the Democratic Party may receive only 38% of the

seats if it receives 45% of the Statewide vote matters only in

comparison to how the Republican Party would fare if it

receives 45% of the Statewide vote.

Il. WELL-ACCEPTED AND WIDELY USED

METHODS EXIST FOR MEASURING THE

PARTISAN BIAS OF PROPOSED LEGISLA-

TIVE REDISTRICTING PLANS

A consensus exists about using the symmetry standard to

evaluate partisan bias in electoral systems. But such a

consensus does not answer the subsidiary question: how to

measure symmetry itself in order to determine whether

partisan bias exists. Over the more than thirty years that

scholars have worked on defining faimess as partisan sym-

metry, they also have deveioped a sequence of closely

related, and steadily improving, statistical methods that

measure the degree of partisan bias in proposed legislative

redistricting plans. These methods, outlined in the articles

cited in Section I, rely on well-tested and well-accepted

Statistical procedures.

Statistical methods and computer software using the

symmetry standard examine all relevant election-related data,

and employ an approach to calculate the difference in seats

that the two parties would receive at a given vote level.°

Using well-accepted techniques, these models allow experts

to measure the number of seats that a party would win at a

* This brief provides a relatively non-technical introduction to the

research methodology used in the field. The articles cited in the text,

published in peer-refereed academic joumals, describe the methodology

more fully.

10

given vote level. And the methods can separate partisan bias

from other factors. While the actual inputs may vary to some

degree from approach to approach, most rely on details of the

proposed redistricting plans, all recent election results, the

presence of an incumbent in the district, and whether the race

is contested. Gelman & King, Unified Method, 38 Am. J.

Pol. Sci. at 523-25. Other factors may include party reg-

istration data, prior party control of the district, candidate

quality, and demographic characteristics of the voting age

population. /d. at 525-26.°

Experts can disagree about which set of input data is

relevant for a given case, but the resulting measures of par-

tisan bias normally will not differ to any significant degree.’

Because social scientists studying partisan bias rely on the

° Any number of programs, both commercial and free, can analyze the

relevant data to measure partisan bias.

’ The methodology of quantifying the amount of partisan bias in a

particular plan of course is subject to the standards of Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 573, 573-75 (1993), and Kumho

‘ Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-52 (1999), as is any

application of statistical methodology. While the standard methodology

for measuring symmetry and partisan bias is well-established, peer-

reviewed, and reliable, the question whether it meets Daubert is not a

question that this Court needs to decide in order to adopt the symmetry

standard. Rather, courts will apply the traditional criteria for admitting

expert evidence and determine in each case (1) whether the experts are

qualified; and (2) whether their particular methodology is reliable.

Indeed, a similar process already exists in other voting rights contexts.

Under Thornburg v. Gingles, 478 U.S. 30, 52-54 (1986), and its progeny,

courts regularly use statistics to determine racial bloc voting and to decide

whether a minority group can elect a candidate of its choice. In each

instance, the court must make a judgment about the expert and the

methodology. For a thorough discussion of the different statistical

standards used to determine whether a plaintiff has met the Gingles test

and their reliability, see Shirt v. Hazeltine, 336 F. Supp. 2d 976, 995-1005

(D.S.D. 2004) (discussing the various standards and surveying cases that

apply these standards).

11

symmetry standard as the baseline for attempting to calculate

the degree of bias, any difference of opinion is limited in

scope and concerns chiefly the methodology used to calculate

the percentage of seats that a particular party would receive

at a given vote level. In practice, these differences have

been minor.

Models applying the symmetry standard are by their nature

predictive, just as the legislators themselves are predicting the

potential impact of the map on partisan representation. The

symmetry standard and the resulting measures of partisan

bias, however, do not require forecasts of a particular voting

outcome. Rather, by examining all the relevant data and the

potential seat divisions that would occur for particular vote

divisions, it compares the potential scenarios and determines

the partisan bias of a map, separating out other potentially

confounding factors. Importantly, those drawing the map

have access to the same data used to evaluate it, and no data

is required other than what is in the public domain. The

question is not whether a particular party will win; it is

whether one party has stacked the deck to such a degree that

the plan burdens the other party’s “rights of fair and effective

representation.” Vieth, 541 U.S. at 312 (Kennedy, J., con-

curring in the judgment). Cf. Doris Kearns Goodwin, Team

of Rivals: The Political Genius of Abraham Lincoln 209

- (2005) (noting that in the 1858 Lincoln-Douglas Senatorial

election, Lincoln lost even though he received a majority of

votes cast because the State Legislature, which picked

Senators at the time, was heavily gerrymandered for the

L emocrats).

12

Itt. THE SYMMETRY STANDARD ALLOWS THIS

COURT TO DECIDE BY POLITICALLY-

NEUTRAL AND OBJECTIVE PRINCIPLES

WHETHER A PARTICULAR PLAN IS OVERLY

PARTISAN

The ability to quantify partisan bias in a redistricting plan,

and to distinguish partisan bias from other factors, permits

this Court to adopt a rule that prevents gerrymandering from

inhibiting a political group’s representational rights. Avnici

take no position on how this Court could best implement a

test for unconstitutional partisan gerrymandering that is based

on evaluating the level of partisan bias in a plan. Yet the

symmetry standard and the methodology applying it are just

as “clear, manageable, and politically neutral,” Vieth, 541

U.S. at 307-08 (Kennedy, J., concurring in the judgment)—if

not more so—than other standards used to evaluate districting

plans. See, e.g., Thornburg v. Gingles, 478 U.S. 30, 55-61,

74-77 (1986) (using statistics to determine the existence of

racial bloc voting, a necessary part of any § 2 claim); Shaw v.

Reno, 509 U.S. 630, 646-49 (1993) (explaining how to de-

cide whether a racial gerrymander is unconstitutional and

examining “appearance,” among other factors); Georgia v.

Ashcroft, 539 U.S. 461, 480 (2003) (discussing influence and

coalitional districts and noting that “[t}he ability of minority

voters to elect a candidate of their choice is important but

often complex in practice to determine”). And this Court’s

jurisprudence in other voting rights contexts suggests three

different possible approaches for using the symmetry stan-

dard to determine the existence of an unconstitutional partisan

gerrymander.

First, this Court could announce a rule of allowing a State

to engage in as little partisan bias as necessary to further other

compelling interests. In the one-person, one-vote context,

this Court has required zero deviation for Congressional

districts, while still permitting the State to justify any dis-

13

crepancy in population with a showing of compelling need.

See, e.g., Karcher v. Daggett, 462 U.S. 725, 740-41 (1983).

Moreover, the State need only achieve complete population

equality “as nearly as practicable.” /d. at 730. So long as a

State attempts in good faith to create equal districts, the plan

passes constitutional muster. /d. at 730-31.

The symmetry standard allows this Court to announce a

similar rule in the partisan gerrymandering context: States

must make a good-faith effort to achieve as little partisan bias

as possible. States could justify any deviation by pointing to

a legitimate interest such as compactness, respecting munic-

ipal boundaries, or preserving the core of prior districts. Cf.

id. at 740.

States can comply with the “as little as possible” rule quite

simply. The sophistication of computer mapping technol-

ogies allows States to add “no partisan bias” to their criteria

in creating a redistricting plan. Cf. id. at 733 (noting that in

1983, “[t]he rapid advances of computer technology and

education during the last two decades make it relatively

simple to draw contiguous districts of equal population and at

the same time to further whatever secondary goals the State

‘ has”). Whenever a State redistricts, it is possible to measure

the partisan bias in a plan using the symmetry standard.

Likewise, States know the total population before redis-

tricting, and because application of the one-person, one-vote

standard is simple, relatively little litigation results. Just as in

the one-person, one-vote context, if this Court sets a clear rule

beforehand, the amount of litigation about the rule post-

issuance would be relatively limited. Finally, a rule of “as

little as possible” captures both the “subtle” and the “blatant”

gerrymander, each of which burdens a group’s represen-

tational rights. Vieth, 541 U.S. at 316 (Kennedy, J., con-

curring in the judgment).

Second, this Court could establish a rule that prevents

partisan bias to the extent that it allows the manipulating

14

party to gain control of one or more legislative seats to which

it otherwise would not win. In other words, the symmetry

standard allows courts to propound a simple and politically-

neutral rule—whether the proposed map is so partisan that, as

compared to a politically neutral map, it would cause one

party to lose a legislative seat. Through the use of experts, a

plaintiff would have to prove that a map would cause a group

to lose a seat. Cf. Gingles, 478 U.S. at 44-46 (imposing a test

for justiciability under § 2 of the Voting Rights Act, 42

U.S.C. § 1973, that requires a showing that the minority

population is “sufficiently large and compact to constitute a

majority in a single-member district” so there exists a

potential remedy plan with at least one more district in which

minorities have a realistic opportunity to elect candidates of

choice than is found in the challenged plan).

Third, this Court could allow partisan bias in districting so

long as it does not rise above a certain percentage. The

symmetry standard allows courts to calculate the percentage

difference in seats that a party would receive at any given level

of the vote. If the average percentage difference be-

tween the two parties is above a particular threshold (whether it

be 3, 5, or 10%), the plan would be unconstitutional. For

example, if the court set the standard at 10%, a plan would not

be unconstitutional unless the Democratic Party would capture

55% of the seats with 50% of the vote whereas the Republican

Party would capture only 45% of the seats with 50% of the

vote. Cf. Brown v. Thompson, 462 U.S. 835 (1983) (above

10% population deviation is prima facie unconstitutional for

state legislative districts); id. at 852 (outlining test for

determining when a plan is unconstitutional).

This third approach allows courts to consider what level of

partisan gerrymandering is unconstitutionally “egregious.”

Vieth, 541 U.S. at 316 (Kennedy, J., concurring in the

judgment). Studies of past partisan gerrymanders have

shown that many gerrymanders have a partisan bias of 1-3

percentage points. In egregious cases, the difference is

15

greater than 5 percentage points, and it is only in the very rare

and extreme case that a gerrymander results in a difference of

over 10 points. Andrew Gelman & Gary King, Enhancing

Democracy Through Legislative Redistricting, 88 Am. Pol.

Sci. Rev. 541, 546 Fig. 2 (1994) (showing 15 states over a

twenty-year period where the partisan bias rarely exceeded 5

percentage points and never exceeded 10 percentage points); _

Gary King, Representation through Legislative Redistricting:

A Stochastic Model, 33 Am. J. Pol. Sci. 787, 814 (1989)

(noting that the effect of the partisan gerrymander passed by

Connecticut in the early 1970s that was at issue in Gaffney v.

Cummings, 412 U.S. 735 (1973), was 3 percentage points);

Robert X. Browning & Gary King, Seats, Votes, and

Gerrymandering: Estimating Representation and Bias in

State Legislative Redistricting, 9 Law & Pol’y 305, 318

(1987) (examining the Indiana plan in the 1980s that was the

subject of Davis v. Bandemer and concluding that the House

plan had a bias of 6.2 percentage points while the Senate plan

had a bias of 2.8 percentage points); King & Browning,

Democratic Representation, 81 Am. Pol. Sci. Rev. at 1262

Fig. 5 (showing bias in all States, with the plurality showing

little if any bias, the vast majority falling within 5 percentage

points, a few between 5 and 10, and even fewer above 10); id.

at 1269 (listing bias figures for all States and showing only

one State with a bias of above 10 percentage points); Gary W.

Cox & Jonathan N. Katz, Elbridge Gerry's Salamander: The

Electoral Consequences of the Reapportionment Revolution

57-59 (2002) (finding extreme cases of gerrymandering at as

much as 8 percentage points).

A rule that tolerates a particular degree of partisan bias

would recognize that this Court is willing to permit some

amount of burden on the rights of political groups in

exchange for limited court involvement in only the most

extreme of cases. As experience has shown, and as this Court

has recognized, savvy legislators will take advantage of all

the leeway that this Court will allow. Cf. Karcher, 462 at 731

16

(“If state legislators knew that a certain de minimis level of

population differences were acceptable, they would doubtless

strive to achieve that level rather than equality.”). Yet even a

rule that policed only extreme cases would curtail some

abuses. Cf. Gelman & King, Enhancing Democracy, 88 Am.

Pol. Sci. Rev. at 541 (noting that while a redistricting plan

may increase partisan bias in a particular instance, regular

redistricting every ten years leads to less partisan bias than no

redistricting at all over a period of decades).

Regardless of any rule that this Court adopts—especially if

it is no rule—tedistricting always will be political to some

degree. Yet not all political consequences lead to an

unconstitutional burden on the minority party. Any rule

limiting partisan gerrymandering still preserves some political

component to redistricting. Decisions of where to draw the

lies and what communities to include inevitably have some

political fallout. The symmetry standard does not necessarily

affect the decision of where to place politically-sensitive land.

Cf. Vieth, 541 U.S. at 358 (Breyer, J., dissenting). Moreover,

the majority party may well decide to give the party that wins

a majority of the vote (say 51%) an even-greater majority of

seats (say 60%). Such a plan favors the majority party, but

would not be unconstitutional under any approach so long as

the minority party could win the same 60% of seats if it

receives 51% of the vote.

And if this Court adopts any rule based on the symmetry

standard, lower courts and this Court will flesh out the

particulars of the rule in the future. Indeed, in the one-person,

one-vote context, once this Court determined the general

standards in Reynolds v. Sims, 377 U.S. at 377, and Wesberry

v. Sanders, 376 U.S. 1, 8 (1964), subsequent cases simply

became legal arguments about exactly what level of popula-

tion deviation was unconstitutional in given circumstances.

See, e.g., Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Mahan

v. Howell, 410 U.S. 315 (1973); White v. Weiser, 412 U.S.

17

783 (1973); Gaffney v. Cummings, 412 U.S. 735 (1973);

White v. Regester, 412 U.S. 755 (1973); Connor v. Finch, 431

. U.S. 407 (1977); Brown v. Thompson, 462 U.S. at 835;

Karcher v. Daggett, 462 U.S. at 725; Larios v. Cox, 300

F.Supp. 2d 1320 (N.D. Ga. 2004) (three-judge panel) (per

curiam), aff d, 542 U.S. 947 (2004). Similarly, this Court

could set a general rule prohibiting partisan gerrymanders,

and let courts decide the specifics of the issue as facts

develop in the future. Cf. Vieth, 541 U.S. at 312 (Ken-

nedy, J., concurring in the judgment) (suggesting that no

manageable standard developed after Davis v. Bandemer

because lower courts could do nothing except follow that

decision); id. at 344-45 (Souter, J., dissenting) (same).

The signatories of this brief take no position on whether the

particular Texas plan in this case is unconstitutional. None

has independently examined the partisan bias in the current

Texas map. The symmetry standard has achieved consensus

within the social science community as a measure of bias

because it 1s a politically-neutral measure that does not

require examining proxies such as shape of the district,

compactness, or traditional political boundaries. Instead, it

evaluates the bias directly by comparing whether the plan

treats similarly-situated parties similarly. Regardless of the

merits of this particular lawsuit, the symmetry standard is “a

suitable standard{] with which to measure the burden a

gerrymander imposes on representational rights.” Vieth, 541

U.S. at 313 (Kennedy, J., concurring in the judgment).

18

CONCLUSION

In deciding this case, this Court should take into

consideration the symmetry standard, as it measures partisan

bias itself and it allows courts to decide in a politically-

neutral and objective manner whether the State’s plan is fair

to all political groups.

Respectfully Submitted,

H. LEE GODFREY JUSTIN A. NELSON *

CAROLYN COURVILLE SUSMAN GODFREY L.L.P.

SUSMAN GODFREY L.L.P. 1201 Third Avenue

1000 Louisiana Street Suite 3800

Suite 5100 ~ Seattle, WA 98101

Houston, TX 77002 (206) 516-3880

(713) 651-9366

* Counsel of Record

Counsel for Amici Curiae

FILEN

' JAN 10 2095

Nos. 05.204, @ YO & -439 | OFFICE OF THE CLERK

* WBiintorac tour, UB” ”

IN THE

Supreme Court of the United States

LEAGUE OF LATIN AMERICAN CITIZENS, et al.,

TRAVIS COUNTY, TEXAS, ef al.,

EDDIE JACKSON, ef al.,

GI FORUM OF TEXAS, ef ail.,

Appellants,

v.

RICK PERRY, ef al.,

Appellees. ~

On Appeal from the United States District Court

for the Eastern District of Texas

BRIEF OF THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. AS

AMICUS CURIAE IN SUPPORT OF APPELLANTS

—FHEODORE M. SHAW

Director-Counsel

JACQUELINE A. BERRIEN

*NORMAN J. CHACHKIN

DEBO P. ADEGBILE ~

CHINH Q. LE

JENIGH J. GARRETT

NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.

99 Hudson Street, 16" Floor

New York, NY 10013

(212) 965-2200

*Counsel of Record

Attorneys for Amicus Curiae

TABLE OF CONTENTS

EE TR EE OEE eRe ii

ST APG 0 Ske Se ei cbnt vine cdsécadens l

Introduction and Summary of Argument .............. l

ARGUMENT —

I Districts In Which Voters Of A Particular

Minority Group Do Not Constitute 50% Of

The Relevant Population, But Who Are Able

To Elect Candidates Of Their Choice In

Combination With Other Minority Voters, Or

With Reliable Crossover Votes From The

Population Majority, Meet The First Gingles

Precondition For A Viable Section 2 Claim ...... 6

A. Recognizing “Crossover” or “Coalition”

Districts under Section 2 Is Consistent with

the Statutory Language, Structure and

Intent, and also with This Court’s Voting

Rights Act Jurisprudence ............-0e000 8

B. Section 2 Claims Involving “Coalition” or

“Crossover” Districts Are Governed by

Manageable Standards Already Familiar to

Federal Courts from Past Section 2 Litigation .. 14

ll Whatever Limitations, If Any, The Court

Places Upon Political Gerrymanders, It Is

Essential That They, Like Other

Redistrictings, Remain Subject To

Meaningful Scrutiny Under Section2 .......... 17

TABLE OF CONTENTS (continued)

Page

A. The Doctrine that Racial Cleavages in Political

Party Affiliation Negate the Significance Under

Section 2 of Racial Voting Patterns

Misconstrues this Court’s Section 2

IN s0 sf diven + ebhuneene es Ktkenhe 18

B. The Fifth Circuit’s Partisanship Exception to

the Second and Third Gingles Preconditions

Ignores the Extent to which Race Has Become

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

C. Whether or Not It Holds that There Are

Constitutional Limits to Partisan

oe in the Redistricting Process,

the Court Should Explicitly Disapprove the

Fifth Circuit’s Unique Partisanship Exception

Ee 4 ais. ae cad wiles Ws Goan 26

I 8 ries cde ach eeondaeeesbueekas 27

TABLE OF AUTHORITIES

Cases:

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

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

Bush v. Vera, 517 U.S. 952 (1996) ..... ED RE Ee 1

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

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

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

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

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

Concerned Citizens v. Hardee County Bd., 906

PO Ts NOU os oc ccescdecvcviccosnes il

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

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

Mis is Keb ac ePhiuceh écedinsuuate 23

Growe v. Emison, 507 U.S. 25 (1993) ..........-000 0s 7

Holder v. Hall, 512 U.S. 874 (1994) ............0045. 15

Houston Lawyers’ Ass'n vy. Attorney General of

SS re ee ere l

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

iv

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

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

Johnson v. DeGrandy, 512 U.S. 997 (1994) ...... 7, 12, 13

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

League of United Latin American Citizens v.

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

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

League of United Latin American Citizens v.

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

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

O29 P.28 S46 (PF Cle. 1B) io osc csccwascntesnen 11

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

NAACP vy. Button, 371 U.S. 415 (1963) ............005- ]

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

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

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

Vv

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

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

itt hehcaenetets 060.00 008 6-7, 16, 17, 22

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

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

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

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

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

Neen es ee sevbscecs 23

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

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

ET TE TENTS CPTI LEY? TEETER 7

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

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

White v. Regester, 412 U.S. 755 (1973) .............4.. 14

vi

TABLE OF AUTHORITIES (continued)

Constitution and Statutes:

I IE 6 otis ce cecceedauteenes 26n

Voting Rights Act of 1965, Section 2,

es aE OPED 600 ccdsencnnddene tude passim

Other Authorities:

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

Exploit Racial Conflict for Votes, WASHINGTON

Pa RRA wacdideccedepeteausenes 24-25

Mary Frances Berry & John W. Blassingame, LONG

MEMORY; THE BLACK EXPERIENCE IN AMERICA

Thomas B. Edsall & Mary D. Edsall, CHAIN

REACTION; THE IMPACT OF RACE RIGHTS, AND ,

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

Richard L. Engstrom, The Reincarnation of the Intent

Standard: Federal Judges and At-Large Election

Cases, 28 How. L.J. 495 (1985) .............4... 21

Vii

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Paul Frymer, UNEASY ALLIANCES; RACE AND PARTY

COMPETITION IN AMERICA (1999) ..........50055 25

Bernard Grofman & Lisa Handley, /ssues in Voting |

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

Bernard Grofman, Lisa Handley, & David Lublin,

Drawing Effective Minority Districts: A

Conceptual Framework and Some Empirical

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

Samuel Issacharoff, Polarized Voting and the

Political Process: The Transformation of Voting

Rights Jurisprudence, 90 MICH. L. REV. 1833

SPE 64 Suda sesinersedecceedusenesweudues 11-12

Pamela S. Karlan, Loss and Redemption: Voting Rights

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

EOE TRE pee AMR Me wed ogee 1

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

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

Vili

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

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

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

SUBCOMM. ON THE CONSTITUTION OF THE

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

DEED 0b cr bws sé cc eductbesotsudeedecensd 2

Interest of Amicus Curiae’

The NAACP Legal Defense and Educational Fund, Inc.

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

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

The Legal Defense Fund’s first Director-Counsel was

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

committed to enforcing legal protections against racial

discrimination and to securing the constitutional and civil rights

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

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

corporate reputation for expertness in presenting and arguing

the difficult questions of law that frequently arise in civil rights

litigation”).

LDF has an extensive history of participation in efforts to

eradicate barriers to the full political participation of African

Americans in and to eliminate racial discrimination from the

political process. LDF has represented parties or participated

as amicus curiae in numerous voting rights cases before this

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

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

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

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

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

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

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

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

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

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

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

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

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

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

amici, made any monetary contribution to its preparation.

2

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

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

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

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

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

Chambers, President of the NAACP Legal Defense and

Educational Fund, Inc.).

Because of its longstanding commitment to the elimination

of racial discrimination in the political process and the

protection of the voting rights of African Americans, LDF has

an interest in these appeals, which present important issues

concerning the interpretation and application of Section 2 of the

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

Introduction and Summary of Argument

The four post-2000 Census Texas congressional

redistricting cases consolidated before this Court arise from a

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

underlying facts are common because they detail a redistricting

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

to extract maximum political advantage. This is unremarkable.

Experience teaches that both the Democratic and Republican

parties aggressively pursue their partisan motives in

redistricting where they can contro] the process.

The story is extraordinary, however, because the naked

partisan objectives of the redistricting process at issue were laid

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

means that the proponents employed to achieve their partisan

ends. A court-drawn and -approved congressional districting

plan fashioned after the 2000 Census, and described as tilting

in favor of the Republican party that controls Texas, was

deemed not to tilt far enough in an era when computer

3

innovations have enhanced the possibilities for highly effective

gerrymandering. Minority party Democratic legislators fled the

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

and passage of the plan that was ultimately passed. Proponents

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

obtaining the return of the departed state legislators, and

longstanding procedural rules of the legislature were nearly

abrogated to facilitate passage of the partisan plan.

This set of underlying facts — manifesting familiar

redistricting opportunism as well as extraordinary proceedings

and techniques — presents this Court for the second time in

as many years with the central question whether partisan

distortions of the redistricting process can rise to the level of

Constitutional injury.

The political aspects of the case have received considerable

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

in service of constitutional guarantees could provide important

guidance in establishing the outer bounds to which elected

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

parties’, interests above those contemplated by the public and

Constitutional purposes of redistricting.

Because the cases consolidated before this Court arose in

Texas, a state that reflects many of the prevailing

demographic patterns and population trends in the United

States, there is another — perhaps less discussed but nc less

important — set of questions that run through the jurisdictional

statements. These are questions about minority voting rights

and the degree to which contemporary partisan redistricting

battles are at tension with well-established legal principles that

protect minority citizens’ access to the political process and

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

partisan manipulations raise questions about the limits of