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complexion of its House delegation while maintaining a

low level of interparty competition within districts. In

order to promote a Republican majority, the intercensal

redistricting had to create populations of voters safe for

one party or the other in as many districts as possible.

Current political conditions have both increased the

incentives to gerrymander and exacerbated the democratic

pathologies it leads to. Over the last 15 years, American

politics on the national level has been subject to a striking

paradox: it has become much more competitive at the

macro level, when it comes to institutional control, but

much less competitive at the micro level, when it comes to

individual seats. Recent presidential elections have been

very close and the Senate and House have been evenly or

very nearly evenly divided. At the same time, the parties

in the House have become much more homogeneous and

ideologically polarized. Their homogeneity means that the

majority party (with near unanimity on critical party

matters) can dominate the House more eifectively than

before even with a small margin. Their polarization, on

the other hand, means that the parties feel the stakes of

control are higher. It increases both the costs of losing and

the benefits of winning. In an almost evenly split House,

where even a small gain in seats can make all the differ-

ence, parties will struggle hard however they can for each

extra seat.

This struggle, of course, can have some positive

effects. It may lead parties to field more attractive candi-

dates, may engage party members more deeply in party

activities, and may cause some voters to become more

interested in politics. It has also had, however, some very

bad effects. In particular, it has led parties to draw con-

gressional districts to give their House candidates an

artificial competitive advantage. The strategies are as

simple as the stakes are high. In states in which the

redistricting power is divided, bipartisan gerrymanders

are constructed to create ever safer districts while main-

taining the partisan status quo. In states with unified

party control, the party controlling the redistricting tries

to pack as many of its opponent’s voters into as few dis-

tricts as possible, thereby giving its opponent victories in

only a few districts but making every victory a landslide.

At the same time, the controlling party tries to create

comfortably safe, but less than “landslide” safe, districts

for its own candidates everywhere else. That way it can

send more of its candidates to the House of Representa-

tives. Under either strategy, the overall result is a dimin-

ishing number of seats that are in any real or meaningful

way competitive in general elections.

This practice undermines the unique role of the House

in several ways. First, it weakens the responsiveness and

accountability of each elected representative to voters in

the district. As the Framers keenly understood, a repre-

sentative who does not face the regular and effective

discipline of the voters cannot be counted on to reflect

their views. Second, it makes the House unrepresentative

of the people overall. Making individual seats safe for one

party means that the House fails to respond well to

changes in underlying public sentiment as the Framers

intended. Unless voters’ attitudes change dramatically,

control of the House will not change at all even though it

and the country are nearly evenly divided. Even worse,

voters’ attitudes can change sharply — leading, say, to a

national swing of five percent — and see little impact on

House elections when only a tiny fraction of seats are

within a five percent margin of change. Third, it can

effectively skew representation away from an overall

‘constituency. If the only meaningful electoral challenge

that can take place is in a party primary, a representative

may be acutely responsive to the faction of ideological

activists who regularly populate party primaries and

largely unresponsive to the views of the average voter in

the district. Centrist voters of both parties are thus artifi-

cially silenced and the House as a whole becomes even

more polarized than before, which, in turn, encourages

further partisan gerrymandering. The result is a vicious

cycle leading to ever more frequent and more severe

gerrymandering and worsening polarization in the House.

All this, of course, undermines the special role the

Framers designed for the House of Representatives in our

national government. Instead of ensuring that representa-

tives have “an immediate dependence on, and an intimate

sympathy with, the people,” partisan gerrymandering

frees them from that dependence. It allows them greater

freedom to pursue others’ interests and to “think, feel,

reason, and act {un]like” the people they represent. The

more electoral districts are designed to deaden real politi-

cal competition, in other words, the less effectively elec-

tions operate to discipline the people’s representatives and

ensure that the House as a whole remains truly represen-

tative. ore

—~

ARGUMENT

I. UNPRECEDENTED PARITY BETWEEN THE

TWO MAJOR PARTIES ON THE NATIONAL

LEVEL HAS CREATED GREAT PRESSURE

TO MAKE INDIVIDUAL HOUSE DISTRICTS

SAFE FOR ONE MAJOR POLITICAL PARTY

OR THE OTHER.

A. The Near Equal Division of the House of

Representatives, Its Widening Ideological

Polarization, and the Increasing Homoge-

neity of Each of the Two Major Parties

Mean That a Small Change in House Seats

Matters Much More Than Before.

As the 2000 and 2004 elections showed, the two major

parties enjoy nearly equal popular support across the

nation as a whole. In 2000, for instance, while one presi-

dential candidate won a plurality of votes, the other won a

victory in the Electoral College; the Senate became split

exactly in two; and the majority party’s control of the

House stood on an extremely slim margin (221-212). Gary

C. Jacobson, A House and Senate Divided: The Clinton

Legacy and the Congressional Elections of 2000, 116 Pol.

Sci. Q. 5 (2001). In terms of popular support, the two

major parties were more evenly matched than anytime

since the nineteenth century. Jd. at 6. And although the

midterm elections of 2002 increased the size of the ruling

party's margin in the House by six seats, that margin still

stood near its modern low. The 2002 elections culminated

a decade-long trend. As figure 1 shows, the largest margin

of majority in the House since 1992 was less than one-

third the historical average from 1960 until 1992, and the

average margin for the last ten years is barely one-sixth of

the average for the preceding period. Infra at App. A-1. By

any standard — historical or absolute — the margin of

control in the House has been astonishingly narrow over

the past ten years.

At first that might appear a good thing. After all,

small margins of control might be thought to force the

parties to cooperate, solve problems together, and allow

some of their more centrist representatives a greater voice.

But for two reasons exactly the opposite is true. First, the

major parties in the House have become increasingly

polarized. Gary C. Jacobson, The Politics of Congressional

Elections 242-50 (5th ed. 2001). Poole-Rosenthal DW-

Nominate Scores, a widely accepted measure of congres-

sional ideology, show how markedly the parties have

diverged over the last thirty years. See Keith T. Poole &

Howard Rosenthal, Congress: A Political-Economic History

of Roll Call Voting chs. 2-4 and App. A (1999) (explaining

and justifying measure). These scores place each member

of Congress on a liberal-conservative scale from -1.0

(liberal) to 1.0 (conservative) on the basis of nonunani-

mous roll call votes. As figure 2 shows, from the early

1970s on, the average scores for members of the Democ-

ratic and Republican parties have steadily and radically

diverged. Infra at App. A-2. In fact, the score gap increased

over fifty percent in that time and now amounts to over

.86 points on just a 2-point scale.

Second, the major parties in the House have become

much more homogeneous. There is now much less diver-

gence than before within each party. As comparison of

figures 3a-d shows, not only have both parties in the

House shifted more towards the extremes, leading to less

overlap in their policy positions, but each party has a much

more cohesive focus than before. Jd. at A-3 — A-6 (originally

appearing at Jacobson, The Politics of Congressional

Elections, supra, at 246-47 figs. 8-4A-4D). In other words,

the two major parties in the House have become increas-

ingly discrete and insular. On policy, they are both more

distant from each other and more internally homogeneous

than before.

In such a world, small differences matter. The vanish-

ingly narrow margins of control over the past ten years

mean that a gain of just a few seats can completely switch

party control of the House. From the 1970s through the

early 1990s, for example, changes of up to 25 seats in any

election would have made no difference to which party

controlled the House. After 1992, however, a difference of

as few as six seats and at most 15 would have made all the

difference. The increasing homogeneity of each party over

that same time, moreover, means that the party in control

now has a greater focus and has to worry less about its

individual members deviating from its preferred policy

positions. The increasing polarization sharply raises the

stakes of House control for each side. Since larger policy

differences separate the parties, which one controls has a

greater effect on legislative policy outcomes. In the 1970s,

when less distance separated the two parties and they

were less homogeneous, which one controlled the House

mattered less because the policy outcomes sought and

produced under one party would have been more similar to

those sought and produced under the other. Once the

parties’ policy preferences markedly diverged and party

members in the House voted more in lockstep than before,

however, the policy stakes greatly increased. Because of

their ideological polarization, each party wants more

extreme policies than before and, because of homogeniza-

tion, the party in control finds it much easier to achieve its

preferred policies even with a small margin. Thus, the

stakes of redistricting have grown in two mutually rein-

forcing ways: narrow margins of control have meant that

differences in just a few seats can change which party

controls the House and a difference in party control makes

a much larger difference in legislative policy outcomes.

Shifting fewer seats produces larger legislative payoffs

than before.

The parties understand this. In recent years, congres-

sional redistricting battles in the states have become

nastier and more pitched. The stakes are so high, in fact,

that national party leaders from Washington have often

led the battles. In the present case, for example, the

Majority Leader of the United States House of Represen-

tatives pushed Texas state legislators to draw a new

congressional map even though the existing plan was only

one election old and the courts had approved it. See Bal-

deras v. Texas, 536 U.S. 919 (2002) (affirming unpublished

opinion of 3-judge court). His reason, stated publicly, was

clear and simple: “I’m the majority leader, and we want

more seats.” David M. Halbfinger, Across U.S., Redistrict-

ing as a Never-Ending Battle, N.Y. Times Al (July 1,

2003). The attempt produced such bitterness, however,

that state representatives of the minority party repeatedly

decamped the state in order to deprive one house or the

other of the state legislature the two-thirds quorum

necessary to pass a new plan. The senate representatives

sojourned in New Mexico. Texas Democrats Are Fined by

G.O.P., N.Y. Times A9 (Aug. 15, 2003) (“Eleven Democrats

have stayed at a hotel in Albuquerque since July 29,

keeping the Texas Senate Republican majority from

obtaining the quorum it needs to consider a Republican

redistricting plan.”).

In response, not only did the Texas Department of

Public Security seek to arrest and return the minority

party representatives to the statehouse but representa-

tives of the United States House Majority Leader pressed

several different instrumentalities of the federal govern-

ment, including the Department of Justice and the Federal

Aviation Administration, to help in the effort. Counsel to

the United States House Majority Leader, for example,

called the Department of Justice and asked if it had the

legal authority to assist in forcing the return of the minor-

ity party state legislators to Texas. Office of the Inspector

General, Department of Justice, An Investigation of the

Department of Justice’s Actions in Connection with the

Search for Absent Texas Legislators 4-6 (Aug. 12, 2003)

{hereinafter DOJ Investigation], available at http://www.

usdoj.gov/oig/special/0308a/final.pdf. Late the day before a

senior staffer for the United States Majority Leader called

the Federal Aviation Administration’s Administrator for

Government & Industry Affairs asking for the current and

past location of the plane of the former Speaker of the

Texas House, which the staffer hoped might lead to the

missing members. Statement of Hon. Kenneth M. Mead,

Inspector General, U.S. Department of Transportation,

Federal Aviation Administration Efforts to Locate Aircraft

N711RD (July 15, 2003) (testimony to House Committee

on Transportation and Infrastructure), available at http://

www.oig.dov.gov/StreamFile?file=/data/pdfdocs/cc2003 123. pdf.

That same day the Texas Department of Public Safety

contacted the federal Air and Marine Interdiction Coordi-

nation Center (AMICC), an arm of the United States

Department of Homeland Security, asking it to locate an

aircraft transporting Texas state legislators. Office of

Inspector General, U.S. Department of Homeland Security,

Report of Investigation IN03-OIG-0662-S, at 1, available

at http://www.dhs.gov/interweb/assetlibrary/DHS_OIG_

Investigation_Texas.pdf. Employees at all three federal

agencies spent time on these reqaests. The FAA and the

AMICC gave state police officials or representatives of the

United States House Majority Leader information on the

location of the plane. The Department of Justice, after ~

much internal consultation, did ultimately refuse to aid in

the return of the errant Texas legislators. One Jys_ice

official aptly described the request from the Majority

Leader’s office as “wacko.” DOJ Investigation, supra, at 5.

So great is the pressure to gain seats that both federal and

state political officials attempted to enlist the power of law

enforcement and national security agencies for partisan

ends. The House Committee of Standards of Official

Conduct admonished the Majority Leader for his efforts in

this case. Statement of the Committee Regarding Disposi-

tion of the Complaint Filed Against Representative Tom

DeLay, House Comm. of Official Conduct, 108th Cong., 2nd

Sess., available at http:/Awww.house.gov/ethics/DeLay_Cover.

htm (Oct. 6, 2004). This politicization of the rules of the

game severely damages the legitimacy of our democratic

process.

B. The Increasing Pressure to Gain Seats Has

Led to Making House Districts Uncompeti-

tive in a Way That Favors One Party.

To gain seats through redistricting requires a party in

control of the redistricting process in individual states to

follow only a simple strategy: that party must make its

opponent’s districts as few and its own as many as possi-

ble. To minimize the number of its opponent’s districts, the

party in control must pack as many of its opponent’s voters

as possible into each district the opponent controls. This

leads to the opposition party winning few districts but

winning each by a landslide. To maximize the number of

its own districts, by contrast, the controlling party must

assign as few of its own voters to as many districts as it

can while maintaining a reliable majority in each of them.

This leads to the controlling party giving itself a comfort-

able but less sizeable margin in as many districts as

possible. The strategy thus aims to make virtually every

district uncompetitive and achieves its partisan ends by

making the districts differentially uncompetitive for each

party. By creating super-safe districts for the opposing

party and merely safe districts for itself, the controlling

party “wastes” minority party votes and efficiently deploys

its own. Knowing that “one person, one vote” and race are

virtually their only hard legal constraints, party strate-

gists feel free to draw such lines.

An extreme example demonstrates these possibilities.

Imagine a jurisdiction with 100 voters, four seats, and two

parties, one of which claims 60 percent of the voters and

the other 40 percent. If the voters are uniformly distrib-

uted across the jurisdiction, the majority party will neces-

sarily win every seat so long as the districts are drawn

contiguously. A uniform distribution of voters ensures that

no matter how the jurisdiction draws its districts three

majority party voters will accompany every two minority

party votes. The only possible way to create a seat for the

minority party would be to district noncontiguously on

some basis where the voters were not uniformly distrib-

uted by party. If party affiliation varied roughly according

to economic status, for example, non-geographic districts

defined by ranges of wealth could permit the minority

party to capture one seat. But, of course, such districts are

only a theoretical possibility in our political system.

If the state legislature had complete freedom in assign-

ing voters to districts and knew how individual voters

voted, many results are possible. It could randomly assign

voters to districts, for example, in which case each of the

four districts would contain roughly 60 percent majority

party voters and the majority party would win every

district. At the other extreme, the legislature could split all

the minority party voters evenly among three arbitrary

districts. In such a scheme, the minority voters would have

a bare majority in the first three districts while the major-

ity party would have a 100% majority in the fourth.’ Al-

though the majority party would win by much more in the

single district it controlled, it would lose three to one in the

legislature itself. By differentially distributing party voters

across districts, in other words, the legislature would be

able to leverage a 40 percent party minority in the elector-

ate into a 75 percent party majority in the legislature. At

the extremes, the legislature could lock the minority party

out completely, as in the random districts, or it could lock

the majority party into a 25 percent minority position. If the

parties were completely polarized and homogeneous,

moreover, a 25 percent minority would be completely

powerless in the legislature. The 75 percent majority would

always get its way. At either extreme and in most places in

between, for that matter, the legislature’s ultimate policy

* A state legislature would usually, of course, be interested in

boosting the representation of the majority party since the majority

party would usually control it. If the present minority party had

previously enjoyed control of the legislature and gerrymandered state

legislative districts to favor its own candidates, however, it could still

control the legislative process despite its minority status and then draw

lines to give a majority of a state’s congressional seats to minority party

candidates. Gerrymandering on the state level can thus induce and

compound democratic pathology at the level of the House.

outcomes would reflect less the underlying policy prefer-

ences of voters, which would not vary, than how voters were

assigned to districts. In a real sense, the people’s represen-

tatives would reflect the districts of the people rather than

the people of the districts.

A party, of course, will usually want to reach no

further than it can reliably grasp. Otherwise, a small shift

in public opinion can cause its gerrymandering to backfire.

See Bruce Cain, The Reapportionment Puzzle 151-59

(1984) (explaining how a party that cuts its margins too

thin can lose many seats if voter support changes). To

prevent this, a party in control of redistricting can be

expected to give itself more than a thin margin of victory

in its districts and may sacrifice a seat or two in order to

ensure that it will continue to dominate its remaining

districts if voter sentiment shifts somewhat in the later

years of the reapportionment cycle. This insurance dead-

ens competition in nearly every district. The party-victim of

the gerrymander will enjoy wins in as few districts as

possible but in each by a landslide while the party in control

of the gerrymander will enjoy wins in a disproportionately

large number of districts but by smaller margins. Few, if

any, districts will remain in true competition.

Examples as extreme as those in the above hypotheti-

cals are admittedly rare. In some states, redistricting power

is divided between the parties, often producing bipartisan

gerrymanders which maintain the partisan status quo while

creating safer seats for both parties. Even with unified party

control, legislatures do not have complete flexibility in

assigning voters to districts. If only to avoid public backlash,

they must pay some respect to geography and often as well to

political subdivisions and communities of interests. Looking

to these other concerns will temper what a state legislature

can do, if only a little. More importantly, until recently state

legislatures could not so effectively gerrymander because in

many instances they could not accurately predict voting

behavior. Above all else, partisan gerrymandering depends

on the ability to predict how different groupings of people

will vote. If a legislature cannot tell whether drawing dis-

tricts one way rather than another will help or hugt a par-

ticular party, it will not be tempted to gerrymander. As

voting behavior becomes predictable, however, partisan

gerrymandering becomes possible, powerful, and common.

Although technology has improved redistricters’ ability

to predict the partisan effects of various plans, the greatest

improvement in prediction has come from changes in voting

behavior itself. District-level voting behavior is more consis-

tent now than it has been for many years. In the 2002 .

midterm congressional elections, in fact, fewer congressional

districts had split preferences — voting for candidates of

different parties for the House and presidency — than in any

election in the previous 50 years. See Gary C. Jacobson,

Terror, Terrain, and Turnout: Explaining the 2002 Midterm

Elections, 118 Pol. Sci. Q. 1, 12 (2003). In only 62 House

districts did voters not elect a representative from the same ~

party for which they had voted for President two years

before. Jd. The 2004 results were even more marked. In only

59 House-,districts did voters not elect a representative from

the same party for which they voted for President at the

same time. See Gary Jacobson, Polarized Politics, supra, at

207 fig. 5. This increasing district-level consistency parallels

a trend in individual voting behavior: the decline of split-

ticket voting. From 1972 to 1996 the percentage of voters

splitting tickets between presidential and senate candidates

has dropped from 28 to 15 percent. Gary C. Jacobson, The

Politics of Congressional Elections 149 fig. 6-2 (5th ed. 2001).

Such increased individual consistency allows those redistrict-

ing to predict much more accurately the partisan eects of

their line-drawing. By understanding how individual pre-

cincts voted in the last presidential election, they can more

reliably predict how those precincts will vote in future

congressional elections and use this information to strategi-

cally aggregate precincts to provide majorities of the “right”

size to each party.

Il. ADVANTAGING ONE PARTY BY MAKING

HOUSE DISTRICTS UNCOMPETITIVE UN-

DERMINES THE UNIQUE ROLE OF THE

HOUSE OF REPRESENTATIVES IN AMERI-

CAN GOVERNMENT.

A. By Deadening Competition in House Dis-

tricts, Partisan Gerrymandering Danger-

ously Weakens the Responsiveness and

Accountability of Representatives to Voters

in Their Districts.

Partisan gerrymandering artificially advantages and

disadvantages parties by deadening competition in as

many districts as possible. Empirical research proves how

much this harms the democratic process. As one leading

political seientist describes its effects, the latest round of

redistricting gave

marginal incumbents of both parties ... safer

districts. Redistricting gave eight Democratic in-

cumbents who had been representing Bush-

majority districts|, districts in which Republican

George W. Bush had won the popular vote in the

2000 presidential election,) new Gore-majority

districts, [districts in which Democrat Al Gore

had won the popular vote in that election]; only

one suffered the contrary switch. ... All thirteen

of the switches involving Republican incumbents

were from Gore- to Bush-majority districts. Of

the twenty-five districts Republicans had wen in

2000 with less than 55 percent of the major party

vote, eighteen were strengthened by increasing

the proportion of Bush voters; of the nineteen

similarly marginal Democratic districts, fifteen

were given a larger share of Gore voters. Thus,

three quarters of the marginal districts were

made safer by redistricting, half of them by more

than [two] percentage points (in presidential vote

share). If analysis is confined to districts with

marginal incumbents who sought reelection in

2002, thirty-two of their forty districts (80 per-

cent) were made safer by redistricting.

Gary C. Jacobson, Terror, Terrain, and Turnout, supra, at

10-11. In individual states, the effects could be even more

extreme. Gerrymandering in California after the last

census, for example, left not a single one of the state’s 53

House districts competitive. Jd. at 10.

Long term trends exacerbate this problem. As figure 4

shows, since at least the mid-twentieth century, competi-

tiveness in House districts has markedly declined. Infra at

App. A-7. In the decade of elections after the 1960s reap-

portionment, for example, an average of 73 seats were won

with less than 55 percent of the major party vote. In the

decade of elections after the 1990s reapportionment, by

contrast, that figure fell by more than 10 percent to 65

seats.

More ominously, elections immediately following

reapportionment have in recent years nearly always (the

1972 Nixon-McGovern election is the only exception)

shown an increase in district competitiveness, but not in

2002. As one commentator has summed up the results

appearing in table 1,

elections held in the immediate aftermath of re-

apportionment ... have generated particularly

large freshman classes and have returned fewer

incumbents than have other elections. On aver-

age, more incumbents retire from the House in

post-reapportionment election cycles, more are

defeated in primaries, more lose in the November

general elections, and fewer win landside reelec-

tions.... [O]n average, since 1972, membership

turnover has been about 45% larger in post-

reapportionment Congresses, with 87 freshmen

rather than 60. If anything, this tendency for

greater turnover in post-redistricting election cy-

cles had appeared to be increasing, as the 1992

elections had generated a freshman class with

110 members.

Hirsch, supra, at 183.

In the 2002 election, however, the opposite happened. Only

54 freshmen were elected — fewer than average for an

ordinary election, far fewer than the average for post-

reapportionment elections, and less than half the figure

for 1992. This lack of competitiveness was, moreover,

peculiar to House elections in 2002. While only approxi-

mately nine percent of House seats were decided by

margins of ten percent or less, roughly half of U.S. Senate

and gubernatorial elections held on that same day were

that close. Jd. at 183.

This fact bodes ill for the rest of the current reappor-

tionment cycle. Since competitiveness typically declines

over the course of each cycle, House elections will, if they

follow history, become increasingly uncompetitive over the

coming decade. In fact, since the 1960s, district competi-

tiveness has on average declined nearly 25 percent from

the beginning to the end of each reapportionment cycle. If

that historical falloff rate continues — and intercensal

districting, like that done by Texas, which aims to deaden

competition in even more districts, can only make it worse

— by the end of this redistricting cycle only 36 House seats

will be competitive, i.e., won by fewer than 55 percent of

the major party vote.*

* In the 1962, 1972, 1982, and 1992 elections, the first held in those

reapportionment cycles, a total of 279 seats were won within this

margin. In the 1970, 1980, 1990, and 2000 elections, by contrast, the

last held in these cycles, 212 seats were. See infra fig. 4 at App. A-7

(supplying figures for each year). The average beginning-to-end falloff

rate in this period is thus 24 percent. Applying this figure to the 47

House seats decided within this margin in the 2002 election, predicts a

decline to only 36 competitive seats in the 2010 elections.

Deadened competition has both individual and aggre-

gate effects. On the individual level, it means that repre-

sentatives fear less the regular judgment of the voters.

The less competitive districts are, the less representatives

will fear defeat at the polls and the less responsive they

will be to general election voters: A representative who

squeaks by will be very sensitive to what constituents

want; a representative assured of a landslide less so.

Uncompetitive districts, then, weaken the structures of

accountability that the Framers believed made members

of the House truly responsive to — and thus truly represen-

tative of — the people. They substitute responsiveness to

party activists and donors for the rigorous discipline that

the Framers intended frequent elections to place on

members of the House.

On the aggregate level, deadened competition means

that the House of Representatives as a whole will not well

reflect changes in sentiment in the voters. Because so few

districts can realistically change parties, the House as a

whole will fail to track shifts in underlying popular opin-

ion. A national swing of five percent in voter opinion — a

sea change in most elections — will change very few seats

in the current House of Representatives. Gerrymandering

thus creates a kind of inertia arresting the House’s dy-

namic process. It makes it less certain that votes in the

chamber will reflect shifts in popular opinion and thus

frustrates change and creates undemocratic slippage

between the people and their government.

B. By Artificially Advantaging One Political

Party over Another, Partisan Gerrymander-

ing Can Be Expected to Skew Public Policy

for the Duration of the Reapportionment

Cycle.

Although partisan gerrymandering deadens competi-

tion within individual districts, that is its method, not its

aim. Its aim, of course, is to give one of the major parties

an advantage over the other in Congress. Comparing the

major parties’ shares of the 2000 presidential vote in the

pre- and post-reapportionment House districts demon-

strates how thoroughly current political gerrymandering

has achieved this. As Gary Jacobson has explained, “The

Bush-Gore vote division provides an excellent approxima-

tion of district partisanship. Short-term forces were evenly

balanced in 2000, and party line voting was the highest in

decades, hence both the national and district-level vote

reflected the underlying partisan balance with unusual

accuracy.” Gary C. Jacobson, Terror, Terrain, and Turnout,

surra, at 9. In other words, districts won by Democratic

candidate Al Gore are generally Democratic while districts

won by Republican candidate George W. Bush are gener-

ally Republican. As figure 5 shows starkly, the post-census

redistrictings helped make many districts comfortably but

leanly Republican and many other districts landslide

Democratic. The last cycle of redistricting, in other words,

made the parties seats differentially safe in a way that

gave one side an artificial edge in the House.

In fact, all the districts in the country with party

landslides of over 80 percent were won by a single party.

In some states, of course, Democratic-controlled redistrict-

ings artificially plumped the Democrats’ share of the state

congressional delegation; in others, Republican-controlled

redistrictings artificially plumped the Republicans’. Both

sides are guilty of such advantage-taking because the

stakes are simply too high. In the 1980s, California De-

mocrats were among the most notorious offenders. See

Badham v. Eu, 694 F. Supp. 664 (N.D. Calif. 1988) (3-judge

court), aff’d, 489 U.S. 1024 (1989). In 2003, the Texas

Republicans were. On balance, however, as the figure

above shows, the immediate post-2000 census plans

advantaged the Republicans. The net effect was to in-

crease the number of Republican districts by nine, from

228 to 237. Gary C. Jacobson, Terror, Terrain, and Turn-

out, supra, at 9. The 2003 Texas intercensal redistricting

increased the number of Republican districts by a further

six. See Jacobson, Polarized Politics, supra, at 201-02.

Together they perhaps give one party control of the House

for the remainder of the decade no matter what happens

politically in the nation. This, of course, could substan-

tively skew national public policy by giving control of the

House to a party that otherwise would not have it.

Increasingly consistent and predictable voting behav-

ior on the district level, moreover, means that there is

little chance that partisan gerrymanders will become self-

defeating. Although some have speculated that partisan

gerrymandering is a self-limiting enterprise, see Cain,

supra, at 151-59 (arguing that majority parties will be

tempted to cut their margins too thin in order to gain as

many seats as possible and will be thrown out of power by

moderate shifts in voter opinion), evidence from the last

redistricting suggests less tradeoff between partisan gains

and safe seats. Indeed, the more reliably voter behavior

can be predicted, the smaller the margins of victory

redistricters can employ without having to worry that

their plans will later backfire. Furthermore, the new-

found eagerness of some state legislatures, like Texas, to

redistrict between censuses in order to give the majority

partys congressional candidates further advantage —

actions unprecedented since the reapportionment revolu-

tion began in the 1960s — shows that legislatures can

recalibrate plans to ensure they never backfire. If a

legislature finds that it cut the majority party’s margins in

safe districts too thin in its efforts to capture many seats,

it can — if the same party still controls the legislature —

simply fatten the margins a bit through periodic fine-

tuning. Intercensal redistricting thus poses a special

danger. It allows a legislature to lock in partisan gains by

recalibrating majorities within districts throughout the

decade. Such recalibration can negate the natural forces of

population change and change of voter sentiment which

can otherwise reinvigorate competition within districts

and work towards making representatives more respon-

sive to their constituents.

C. Partisan Gerrymandering Artificially In-

creases Ideological Polarization in the

House.

By making individual districts uncompetitive, parti-

san gerrymandering frustrates the representation of

centrist views in the House. Safe districts are drawn to be

either more conservative or more liberal than a non-

gerrymandered district would be; their average voter is

intended to be reliably off the overall median. Artificially

skewing districts in this way is what ensures the election

of candidates from particular parties. But that makes it

less likely that candidates reflecting the views of these

median voters will be elected anywhere. In advantaging

one political party, then, partisan gerrymandering not only

(1) disadvantages the other major political party and (2)

makes districts uncompetitive, but also (3) makes more

difficult the representation of views from the center.

Another feature of gerrymandering exacerbates this

problem. Deadening competition between the major

parties shifts any real political competition in the district

into one partys primary, where ideological activists

dominate. David Brady & Morris Fiorina, Congress in the

Era of the Permanent Campaign, in The Permanent

Campaign and Its Future 134, 135-36 (2000). Centrist

candidates of both parties have trouble surviving in safe

districts because in the primaries they must appeal to a

group of voters representative neither of the district as a

whole nor of even the party as a whole but only of the

majority partys most intense members. More sharply

ideological candidates appeal to this primary electorate.

Democratic primary voters vote for more left-leaning

candidates than the average Democrat, let alone the

average voter, would and Republican primary voters vote

for more right-leaning candidates than the average Repub-

lican or average voter would. As a result, districts elect

candidates more extreme than the voters and the House

has become bipolar even though the country has stayed

largely in the middle. Making districts safe thus silences

the vital center. Unlike the Framers’ vision, a gerryman-

dered House reflects not popular sentiment in all its

diversity but the sentiment of one extreme or the other in

districts across the country. And that is not the worst. Just

as polarization within the House is one of the primary

effects of partisan gerrymandering, it is also one of the

primary causes. As discussed previously, polarization of a

nearly evenly split House greatly raises the stakes of

redistricting and so increases the incentives to gerryman-

der, which in turn leads to further polarization in the

House. Far from limiting itself, under these conditions,

partisan gerrymandering is self-intensifying. Polarization

and partisan gerrymandering form a vicious circle where

increases in one increase the likelihood of the other.

Together with intercensal redistricting they ensure the

defeat of the Framers’ clear vision of the House.

CONCLUSION

Amici agree with Appellants’ arguments on the law

concerning the constitutionality of partisan gerrymander-

ing and intercensal redistricting. For the reasons stated in

Appellants’ brief on the merits and for the reasons stated

here, Amici strongly believe that this Court should develop

workable standards to discipline egregious forms of

partisan gerrymandering and foreclose intercensal redis-

tricting motivated only by partisan advantage. Accord-

_ ingly, Amici respectfully urge this Court to reverse the

judgment of the district court and remand the case for

further proceedings.

Respectfully submitted,

DANIEL R. ORTIZ

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Road

Charlottesville, VA 22903-1789

—_—_—_—

‘T 193 €8T 38 (PI

Table 1

Comparison of the 2002 Election

With Elections from 1972 to 2000

Average “Normal”

Election Average Post-

(1974-1980, Reapportionment

1984-1990, Election 2002

Category 1994-2000) (1972, 1982, 1992) Election

Incumbents reelected 375 348 381

By >20 points 297 261 338

By <20 points 78 87 43

Incumbents defeated 21 35 16

In the primary 3 13 8

In the general 18 22 8

Incumbent retirements 37 48 35

New members 60 87 54

‘L6| We ‘vadns ‘yosny

Districts

Figure 5

Distribution of Bush Districts and Gore Districts in the 2002 Plans

50-55

26 24

13 11 12

5-80 80-85 85-90 90+

60-65 65-70 70-75 7

2000 Presidential Vote in Each District

[DDistricts Won by Bush Districts Won by Gore

fez] ~ fe) ©

oO =) So oO

Nh Ww

Oo i)

Beyond the 218 Needed for Majority Control

= vey

oO oO

The Number of House Seats Held by the Majority Party

A-1

Figure 1: The Size of House Majorities, 1960-2004

rT 73 «74

1 |

-| |] 59

t +

1 51 50

: x 7

w .. 42

41 aS 41 |

2 7 : » - 7

‘ - ‘i 35 ff] | |

: 30 | fa |;

F c] 2 11 25 25 .

E & * "2

vt : P a he 4

A ri] :

- s| ts | 13 3 *

ba io a ; Ey | ‘ a 6

Oo N =) ™N wT © i. 2) i) N is@) o : is @) © N :

Sources: 1960-2000: Calculated from data in Norman J. Ornstein, Thomas E. Mann, and Michael J. Malbin, Vital

Statistics on Congress 2001-2002 (Washington, D.C.: American Enterprise Institute, 2002), Table 1-19; 2002:

Office of the Clerk, House of Representatives, "Congressional Profile” at

http://clerk.house.gov/members/congProfile.php. The 2004 figure calculated by Gary C. Jacobson.

| Difference Between the House Parties,

87th Through 108th Congresses

ica

: Ideolog

Figure 2

(vO-€00Z) 801

(Z0-100Z) 201

(00-6661) 901

(86-2661) SOL

(96-S66L) 704

(y6-€664) £01

(26-1661) ZOL

(06-6861) LOL

(88-2861) OOL

| (98-S86t) 66

| (y8-€861) 86

| (78-1864) 26

| (08-6264) 96

| (82-2261) S6

(92-SZ64) ¥6

(02-6961) 16

(pZ-€L6L) €6

(ZZ-LZ64) Z6

(g9-2961) 06

(99-G961) 68

(y9-€961) 88

(79-1961) 28

= ©» @ £2 ee 2 eae

oO oO a] oO © [a | oO La ] oO

81095 a}EUIWON-AAG UBeW U! e2UaJAyIG

Source: Computed by Gary Jacobson from DW-Nominate Scores calculated by Keith T. Poole and Howard

Rosenthal, available at http://voteview.com

Number of Representatives

70 -

pr arocanmenarsssasssanonsenscoseacssonce ces

A-3

Figure 3a: 93rd Congress (1973-74)

OREO Ra REROEEE FAAP E RES SEE EEERERSEEEORAS ESSER TERE RT ES

& Republicans

| Democrats

O08 ROOT CTT wwe wees

-1

Li 7 ’

0.9 -0.8 -0.7

Source: See text.

-0.6

Oe et ew new Te were ees

. 7

05 04 -03 -02 -01 0 01 02 03 04 05 06 07 08 O89

D-NOMINATE Score (1st Dimension)

S S S

Number of Representatives

ye)

Figure 3b: 97th Congress (1981-82)

IIH

\\l1

ALA

Hill i

I\]

Hii

& Republicans

@ Democrats

HALL

ii}!

WHT

IAI

HAHAH Hil

1 -09 -08 -0.7 -06 -05 -04 03 02 01 0 01 02 03 04 05

D-NOMINATE Score (1st Dimension)

Source: See text

Number of Representatives

40 }-

10 +

A-5

Figure 3c: 101st Congress (1989-90)

& Republicans |

@ Democrats

RR BL eT,

08 -0.7 06 05 04 03 O02 -0.1 01 02 03 04 05 06 07 08 O09 1

D-NOMINATE Score ens Dimension)

Source: See text

Number of Representatives

Figure 3d: 105th Congress (1997-98)

60 | sence

50 - ey = stained

& Republicans =

40 ~——_—__-- { - Democrats — -

-1 09 08 07 06 05 04 03 02 01 0 01 02 03 04 05 06 07 08 O89

Source: See text

D-NOMINATE Score (1st Dimension)

Figure 4: House Seats Won With Less than 55% of the Major Party Vote, 1960-2002

120

100 +

40 4

106

5 =

85 " é.

" 2

5 ae s

aes he

4] oa 8] a 65

é 1 f] 68 —),

4 “a OF os . ry 7

< + ‘Ss ‘4 “et 7

nt 53 4” oy

“ 52 , .

y ” - a

es : 0 - rs + ;

" * | ie ¢

iq ‘ “a * » ar bs

=, . : ; as es

: ¥ “3 fl

¢ “ag ow 2

iz te | LF

a Bs f vy

3 . e* 5 7 < sat

5 ry = ‘ee be

ib : . ;

a ' i rss “4

* we os =

fe *, &

: "es %

‘ ;

‘ e

“~” .

~~ — as 7 7 7 7 7

> — 7 a ms

1960 1962 1964-4966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002

Sources: Compiled by Gary Jacobson from data in Congressional Quarterly'’s Guide to U.S. Elections , 2nd. Ed.

(Washington, D.C.: Congressional Quarterly, 1985); Michael J. Dubin, United States Congressional Elections, 1788-

1997 (Jefferson, NC: MacFariand & Company, 1998); and U.S. Federal Election Commission, "Recent Election

Results,” at http://www.fec.gov/elections.htmi.

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

IN THE

Supreme Court of the United States

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.,

Appellants,

Vv.

RICK PERRY, GOVERNOR OF TEXAS, ef al., Appellees.

TRAVIS COUNTY, TEXAS, ef al., Appellants,

RICK PERRY, GOVERNOR OF TEXAS, ef al., Appellees.

EDDIE JACKSON, et al., Appellants,

RICK PERRY, GOVERNOR OF TEXAS, et al., Appellees.

GI FORUM OF TEXAS, ef al., Appellants,

RICK PERRY, GOVERNOR OF TEXAS, ef al., Appellees.

On Appeal from the United States

District Court for the Eastern District of Texas

BRIEF OF THE REPUBLICAN NATIONAL

COMMITTEE AS AMICUS CURIAE

SUPPORTING APPELLEES

THOMAS J. JOSEFIAK

Counsel of Record

SEAN CAIRNCROSS

REPUBLICAN NATIONAL

COMMITTEE

310 First Street, S.E.

Washington, D.C. 20003

(202) 863-8500

February 1, 2006 Counsel for Amicus Curiae

TABLE OF CONTENTS ;

Page

a CD iiaeiciitiiaiiititiitciiciictiectitciiaiiibana il

INTEREST OF THE AMICUS CURIAE ...........:cccccsssseesees I

SUMMARY OF ARGUMENT ..........cceccesscesrsesseresseseceerees ]

SE bivhainesiniciciiiaticiitasitsiissavisiastinntiiaiianiiiainincbadi 2

I. THE TEXAS 2003 LEGISLATIVELY ENACTED

CONGRESSIONAL MAP DOES NOT VIOLATE

THE FOURTEENTH AMENDMENT'S EQUAL

PREM UEE CE cnciicictiinassnccntngptiihiiniiccsnnnnscenies 2

A. The Texas Map Does Not Meet the Standard Set

Forth By the Bandemer Plurality ..................::00000+ 3

B. The Texas Map Survives Any Cognizable

Standard of Vote Dilution ...............:ccssssseeeseeeeeneees 8

1. The Vieth Plaintiffs’ Standard ................... 13

2. The Vieth Dissenters’ Standards ................... 14

Il. THE VOTING RIGHTS ACT OF 1965 IS A

STATUTORY SHIELD TO PROTECT MINORITY

POPULATIONS, NOT A PARTISAN SWORD ........ 16

IOS cctcscininintnccatintnitoprennininndcuttinesiiileiateinninieesieition 22

TABLE OF AUTHORITIES

Page(s)

CASES:

Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988) ........ 5,12

Baird v. Consol. City of Indianapolis, 976 F.2d 357 (7th

ae IIE Aessiclihcsnctedlipldidindinhibinddeinndnbtaeiinebideinidnitain 17-18

BR POP, SET SRD. FO CRI cnccecissnccncscrsnsctcninanen 4,15

Colegrove v. Green, 328 U.S. 549 (1946) .........00000 dei 8

* Davis v. Bandemer, 478 U.S. 109 (1986) ...........:0000- Passim

Hall v. Virginia, 276 F. Supp. 2d 528 (E.D. Va. 2003),

aff'd 385 F.3d 421 (4th Cir. 2004) ..........cccccsceseeseeeees 17

Henderson v. Perry, 399 F. Supp. 2d 756 (E.D. Tex.

ITD :<invshssissciatiaiesincsibviehaieiapleaiaipateuannpittidiasinbaliin 7, 8,9, 11

Johnson v. De Grandy, 512 U.S. 997 (1994) .......000+. 9-10, 18

Johnson-Lee v. City of Minneapolis, 2004 WL 2212044

ETD ncidiktitiitbeciniitnteinnntiiavineanitinelatinitscnaiea 4

Lewis v. Alamance County, 99 F.3d 600 (4th Cir. 1996) ... 17

Nixon v. Kent County, 76 F.3d 1381 (6th Cir. 1996) ......... 17

Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992) ........... 5,8

Quilter v. Voinovich, 981 F. Supp. 1032 (N.D.Ohio 1997),

Fy Re es SE ID caiticanccncsteteotiteennectaiaonnnines 17

Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. _

SUPER <eictotheslbbsaninslnciebdabbenistintnacmiesianiidiamiansedntintiaiiabibiedes 17

Shaw v. Reno, 509 U.S. 630 (1993) ......ccccccccccesseseceeeeseeeeees 14

Thornburg v. Gingles, 478 U.S. 30 (1986) ............+. 2, 16, 17

Table of Authorities (continued)

Page(s)

Uno v. Holyoke, 72 F.3d 973 (Ast Cir. 1995)... eeeeeeeees 17

*Vieth v. Jubelirer, 541 U.S. 267 (2004) ...........cseee passim

Whitcomb v. Chavis, 403 U.S. 124 (1971) ....ccccccscesseeeseeeeeee 9

STATUTES:

Voting Rights Act of 1965, 42 U.S.C. § 1973 (§ 2) .......... 16

LEGISLATIVE MATERIALS:

CLERK OF THE U.S. HOUSE, REPORT ON STATISTICS OF

THE PRESIDENTIAL AND CONGRESSIONAL ELECTION

OF NOVEMBER 2, 2004 (2005) available at

http://clerk.house.gov/members/electionInfo/2004

election. pdf (last visited Jan. 27, 2006) ..............sseeees 6

H.R. REP. NO. 97-227, at 30 (1981) .........scccssscssersserseesenees 20

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

RELATED TO THE RIGHT TO VOTE, 89th Cong. (Ist

I SIUIE snkisdesdidchicinstanicidiachthinnicstatesaneiiliashconibaipadbhentdibhdesias 19

S. Rep. No. 417, 97th Cong. (2d Sess. 1982), reprinted in

Et SE. SC a an ere eee 20, 21

MISCELLANEOUS SOURCES:

MICHAEL BARONE, THE ALMANAC OF AMERICAN

PE I ID ctiliniinintoretkcincassndidedsstanidinnte 10, 16

Brief of Amicus Curiae Republican National Committee,

Davis v. Bandemer, 478 U.S. 109 (1986) ...........cceeee0eee 3

Table of Authorities (continued)

Page(s)

Bureau of Commissions, Elections and Legislation,

Pennsylvania Department of State, 2004 General

Election Returns, available at

http://web.dos.state.pa.us/cgi-

bin/ElectionResults/elec_archive.cgi?which=Archive

oF a ee ae 10

Michael A. Carvin and Louis K. Fisher, A Legislative

Task: Why Four Types Of Redistricting Challenges

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

ACTING TF, 2, TBS F CAGES) cscccnnsisisrcrenasessticcsnceniions 18

April Castro, Texas Democrats Hopeful Despite Low

Point, THE ASSOCIATED PRESS, July 30, 2004 .......... 13

Chris Elliot, A Message from TCDP Chair Chris Elliot,

Travis County Democratic Party Press Release, Nov.

Galveston County Event Flyer, available at

http://www.galvestoncountydemocraticparty.com/

Special/TTB/index.htm (last visited Jan. 30, 2006) ... 12

BYRON C. HULSEY, EVERETT DIRKSEN AND HIS

PRESIDENTS: HOW A SENATE GIANT SHAPED

AMERICAN POLITICS 210-11 (Univ. Press of Kansas

FRO) - crceersnrnperieenvemamncnetaiesennniitls 21,22

NEIL MACNEIL, DIRKSEN: PORTRAIT OF A PUBLIC MAN

4 (The World Pub. Co. 1970) ........-ccese0e0+ Parosepscesivnates 21

Texas Democrats To Meet On The Island, THE [Galveston

County, TX] DAILY NEws, Dec. 28, 2005 ............ 12-13

* Authorities principally relied upon are denoted by an asterisk

(“*”),

INTEREST OF THE AMICUS CURIAE

Amicus Republican National Committee (“RNC”) is an

unincorporated association that represents the National

Republican Party — including Republican congressmen and

women, state legislators, and registered voters — and its

interests are directly affected by the redistricting process in all

fifty states, including Texas.' The RNC seeks fair redistricting

procedures nationwide, such as those used by the Texas

legislature in drawing the Texas 2003 legislatively enacted

congressional map, Plan 1374C (the “Texas Map”), because

such procedures protect against egregious partisan

gerrymandering that dilutes opportunities for Republican

congressional and state legislative candidates to win elections,

and denies Republican voters their rights to full representation

and to full participation in the political process. |

SUMMARY OF ARGUMENT

1. Ifapolitical party has geographically identifiable and

stable demographic voting segments, sophisticated technology

makes it possible to draw a congressional map that locks that

party into winning q majority of the delegation despite losing

the popular vote. Such a partisan gerrymander violates the

Fourteenth Amendment’s equal protection clause. The Texas

Map does not constitute such a political gerrymander, and it

does not violate equal protection. This Court’s political

gerrymandering jurisprudence, beginning with Davis vy.

Bandemer and continuing through Vieth v. Jubelirer, makes

clear that the Texas Map is not constitutionally deficient. The

Texas Map survives scrutiny under the Court’s plurality

standard in Bandemer; indeed, the Texas Map survives scrutiny

under any cognizable standard of vote dilution. On the contrary,

' The parties have consented to the filing of this brief. Their letters are

on file with the Clerk of the Court. Pursuant to Rule 37.6, amicus states that

no counsel for any party has authored this brief in whole or in part, and no

person or entity other than amicus made a financial contribution to the

preparation or submission of this brief.

the legislatively drawn Texas Map more accurately translates

the Texas vote into Congressional representation.

2. Appellants’ argument with respect to the Voting

Rights Act amounts to interest group politics, which Justice

White made clear in his Thornburg v. Gingles concurrence

should play no part in the Act. The Voting Rights Act of 1965

was a legislative response to the violence that erupted in Selma,

Alabama, when African-Americans simply tried to register to

vote. The legislative record makes clear that legislators from

both parties supported the Voting Rights Act’s initial passage

and each of its three following renewals as a means to tear

down historical impediments to political participation that were

(and are) targeted at or effecting minority populations — in

particular, policies and programs designed to, or that did, stop

African-Americans from voting. Based upon the Act’s

language, case law, the legislative record, and the historically

clear and strong support of the Act by a majority of Republican

congressmen and the Republican Party, it defies logic to argue

that the Act was intended to favor one political party over

another.

ARGUMENT

I. THE TEXAS 2003 LEGISLATIVELY ENACTED

CONGRESSIONAL MAP DOES NOT VIOLATE

THE FOURTEENTH AMENDMENT’S EQUAL

PROTECTION CLAUSE.

Partisan gerrymandering removes control of legislative

bodies from the hands of the electorate. By definition, partisan

gerrymandering accords different weight to different votes on

the basis of political party. A party with geographically

identifiable and stable demographic voting segments can

combine with clever cartographers to create a map that

institutionalizes single-party domination over a state’s

congressional delegation against popular will. Such partisan

gerrymandering dilutes the votes of one (or more) party’s

voters in violation of the Equal Protection Clause of the

Fourteenth Amendment. The RNC has consistently articulated

this concern and a plurality of this Court has recognized the

potential for such a violation since Davis v. Bandemer.’ 478

U.S. 109 (1986); Vieth v. Jubelirer, 541 U.S. 267, 292 (2004)

(“the issue we have discussed is not whether severe partisan

gerrymanders violate the Constitution, but whether it is for the

courts to say when a violation has occurred, and to design a

remedy”); see also Brief of Amicus Curiae Republican

National Committee, Bandemer, 478 U.S. 109 (1986). The

RNC’s position on partisan gerrymandering remains

unchanged.’ While no single standard for determining an

unconstitutional political gerrymander has emerged, it is clear

that the Texas Map is not an unconstitutional political

gerrymander under any standard.

A. The Texas Map Does Not Meet the Standard

Set Forth By the Bandemer Plurality.

The Court first articulated a standard for establishing an

unconstitutional partisan gerrymander in its plurality opinion in

Bandemer — the only such standard that has ever been judicially

2 ___ Despite the Court’s decision in Vieth v. Jubelirer, 541 U.S. 267, the

justiciability of political gerrymander claims has not been foreclosed. 541

U.S. at 306-17 (Kennedy, J., concurring).

>- Notably, the Democratic Party has failed to hold a consistent view; for

example, in Bandemer, the Democratic Party filed an amicus brief that

argued Indiana’s map was unconstitutional — yet application in this case of

the very standard argued for in that brief would likely have led to the Court’s

invalidating the Texas map that Appellants favor — the 2001 court drawn

interim map. Moreover, it is notable that Democrats and/or their associated

parties have not challenged maps in states such as California or

Massachusetts — states in which the Democratic percentage of the

congressional delegation far exceeds the Democrats’ share of the popular

vote.

endorsed.‘ The Court set this standard aside in Vieth; however,

while Bandemer's test was never successful in identifying what

does constitute an unconstitutional political gerrymander, it is

instructive in this case insofar as it helped identify indicia of

what does not. |

Bandemer'’s standard was two-pronged: plaintiffs had to

show intentional discrimination against, and actual

discriminatory effects upon, an identifiable political group.

Bandemer, 478 U.S. at 127. A- threshold showing of

discriminatory vote dilution was required to make out an initial

equal protection case. Such vote dilution, in turn, triggered a

violation only when the electoral system was arranged in a

manner that “consistently degrades a voter’s or a group of

voters’ influence on the process as a whole.” Id. at 132

(emphasis added). Simply because a particular redistricting

map made it more difficult for a particular group, including a

political party, in a particular district to elect their

representatives was not enough to show a discriminatory effect

— winning elections was not the sole determinant of political

* Political gerrymandering equal protection claims have consistently

been analyzed under rational relationship level of scrutiny, and the RNC

does not argue here for the Court to apply a different level of scrutiny in this

context. The Court has steadfastly refused to apply strict scrutiny to

redistricting maps challenged on equal protection grounds on the basis of

political gerrymandering. See, e.g., Vieth, 541 U.S. 267, 313-14 (Kennedy,

J., concurring) (“[t}he Fourteenth Amendment standard governs [political

ing claims]; and there is no doubt of that”); Bush v. Vera, 517

U.S. 952, 964 (1996) (plurality opinion) (“[w]e have not subjected political

gerrymandering to strict scrutiny”); see also Johnson-Lee v. City of

Minneapolis, 2004 WL 2212044 (D.Minn.) (2004) (“[t}his Court interprets

Justice Kennedy’s choice of language [in Vieth]...as referring to the rational

relation standard”).

participation.’ Jd. at 131; see also Badham v. Eu, 694 F. Supp.

664, 669 (N.D. Cal. 1988) (effects test requires more than

“present or projected election results under the challenged

districts” (emphasis added)). Therefore, that fewer Democratic

congressional candidates were elected in 2004 under the Texas

Map would not be enough to invalidate the map.

The relevant discriminatory effects inquiry asked whether

voters had been denied their ability to directly or indirectly

influence the elections of a state legislature as a whole.

Bandemer, 478 U.S. at 133. The Court set forth two broad

categories in analyzing whether such a denial existed: (1)

history of disproportionate election results visited on the

plaintiffs; and (2) indicia of lack of political power or fair

representation. See id. at 139; Pope v. Blue, 809 F. Supp. 392,

396 (W.D.N.C. 1992). Further, it is important to note that an

equal protection claim based on partisan gerrymandering must

ultimately be evaluated with respect to the makeup of the

representative body that the map affects. See Bandemer, 478

U.S. at 133. Since the Texas Map, however, is a congressional

* In addition, the Bandemer plurality held it would not be enough even

to establish that the purportedly disadvantaged party had been “placed in a

- district with a supermajority of other [of that party’s] voters” or that the

district “departs from pre-existing political boundaries.” See Bandemer, 478

US. at 140-41.

* Bandemer articulated a different inquiry for challenges directed at

individual districts rather than those, such as in this case, which are directed

at a statewide map. See Bandemer, 478 U.S. at 133. Since this case involves

a congressional map, the relevant inquiry must be the Texas's voters’

influence on the makeup of the United States House of Representatives as

a whole. Appellants’ challenge would therefore be properly supported by

evidence of continued frustration of the will of a majority of the voters or

effective denial to a minority of voters of a fair chance to influence the

political process nationwide, rather than simply within the state of Texas. /d.

at 133. Regardless of which point of reference is used, however, the

threshold is not met in this case.

map, any accurate measure of “fairness” must view the Texas

delegation in the context of the United States House of

Representatives — and in 2004, Democrats won 46.6 percent of

the national congressional vote and 46.4 percent of House

seats. CLERK OF THE U.S. HOUSE, REPORT ON STATISTICS OF

THE PRESIDENTIAL AND CONGRESSIONAL ELECTION OF

NOVEMBER 2, 2004 (2005) available at

http://clerk.house.gov/members/electionInfo/2004election.pdf

(last visited Jan. 27, 2006). The Texas Map cannot be adjusted

without altering this national balance. Appellants wholly fail to

address this concern, or offer to any explanation as to why this

demonstrates some “unfairness” on the part of the Texas Map.

Justice Powell, in his Bandemer concurrence, articulated

an alternative standard for unconstitutionality that, although

rejected by the Court in Vieth, the Texas Map also survives.

Adhering to the intent and effect framework, Justice Powell

wrote that the relevant inquiry’s focus should be “whether

district boundaries had been drawn solely for partisan ends to

the exclusion of all other neutral factors relevant to the fairness

of redistricting.” Bandemer, 478 U.S. at 161 (Powell, J.,

concurring in part and dissenting in part). Justice Powell

offered the following factors, among others, to consider: (1) the

shapes of voting districts and adherence to established political

subdivision boundaries; (2) the nature of the legislative

procedures by which the apportionment law was adopted; (3)

any legislative history reflecting contemporaneous legislative

goals; and (4) evidence concerning population disparities and

statistics tending to show vote dilution.’ /d. at 161. Appellants

fail to offer support evidencing discriminatory effect in any of

Justice Powell’s suggested categories; if anything, the evidence

demonstrates that the Texas Map redresses such discriminatory

effects that had been visited upon Republicans. See Henderson

v. Perry, 399 F. Supp. 2d 756 (E.D. Tex. 2005).*

Over time, lower courts attempting to apply Bandemer in

political gerrymandering cases unanimously failed to find a

constitutional violation. See Vieth, 541 U.S. at 279-80.

Undoubtedly, some of this record is due to the difficulties

inherent in applying Bandemer’s test and in attempting to

discern a concept as slippery as “political fairness.” It is also

due, however, to the high threshold the Bandemer plurality set

’ This standard was rejected by the Court in Vieth: “Fairness is

compatible with noncontiguous districts, it is compatible with districts that

straddle political subdivisions, and it is compatible with a party not winning

the number of seats that mirrors the proportion of its vote. Some criterion

more solid and more demonstrably met than that seems to us necessary to

enable the state legislatures to discern the limits of their districting

discretion, to meaningfully constrain the discretion of the courts, and to win

public acceptance for the courts’ intrusion into a process that is the very

foundation of democratic decision making.” 541 U.S. at 292.

* The Henderson Court cited multiple sources in support of its view of

past Texas redistricting maps as highly partisan gerrymanders. See

Henderson, 399 F. Supp. 2d at 768 n. 47 (citing MICHAEL BARONE, THE

ALMANAC OF AMERICAN POLITICS 2004, at 1510 (2003) (“The pian

carefully constructs democratic districts with incredibly convoluted lines and

packs heavily Republican suburban areas into just a few districts”) and Brian

_ P. Marron, Doubting America's Sacred Duopoly: Disestablishment Theory

and the Two-Party System, 6 TEX. F. ON C.L. & C.R. 303, 307 (2002)

(“Texas experienced what is sometimes referred to as ‘the great partisan

gerrymander of ‘91’... this ‘packing’ strategy helped the Democrats in the

1992 election to win 21 of the other 22 districts”)).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.