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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0223%3A21

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1074

## Text

6

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

7

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

8

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

—~

9

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

10

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

11

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

12

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.”).

13

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

14

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

15

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.

16

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.

17

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

18

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).

19

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

20

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

21

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.

23

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.

24

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.

25

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.

27

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

28

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

29

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

30

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 — 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.

Ow

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

EDDIE JACKSON, et al., Appellants,
V.
RICK PERRY, GOVERNOR OF TEXAS, et al., Appellees.

GI FORUM OF TEXAS, ef al., Appellants,
V.
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

nd
we

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

il

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 :- 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.

4

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”).

5

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.

6

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

7

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”)).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0223%3A21. Public record. Not legal advice.