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

for finding a partisan gerrymander unconstitutional.? See

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

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

attacks on virtually every single legislatively drawn map,

swamp the federal courts in litigation, and force the judiciary

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

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

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

test for availability, the more frequently interest rather than

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

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

for lowering the bar in this case.

B. The Texas Map Survives Any Cognizable

Standard of Vote Dilution.

More than satisfying Bandemer 's constitutional standard,

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

survives scrutiny under amy cognizable standard of vote

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

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

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

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

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

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

Mr. Smith: But the lower courts have since effectively

overruled Bandemer by requiring factual

showings of plaintiffs that are impossible and I

submit irrational...

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

Bandemer then? | mean, Bandemer set a very

high standard. MP3 File: Oral Argument in

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

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

1648/argument.mp3.

9

While the present plan, drawn by a Republican Party

majority in 2003, has been decried as egregious, the

story must begin with the earlier map drawn by a

Democratic Party majority in 1991. That plan, put in

place following the 1990 census, was cited in the

political science literature as an extreme example of

what one party can do in drawing a redistricting map

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

Party gerrymander was still in place and, although

Republicans now enjoyed substantial statewide

majority strength, the results of the congressional

elections favored Democrats by a seventeen to

thirteen margin. /d. at 767-68.

No one standard came out of Vieth, but four different

potential standards were suggested — one by the plaintiffs, and

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

any of these standards.

The Texas Map Yielded Election Results That Were

Closer to Proportional Partisan Representation

Than Those Under the 2001 Court Drawn Map.

While the Court has rejected proportionality as a

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

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

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

“requires proportional representation or that legislatures in reapportioning

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

contending parties in proportion to what their anticipated statewide vote will

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

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

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

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

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

districts simply because the supporters of losing candidates have no

legislative seats assigned to them”).

10

De Grandy, S512 US. 997, 1023 (1994). Indeed,

“disproportionate election results” has been the gravamen of

virtually every political gerrymandering complaint, underlying

most standards suggested to adjudicate political

gerrymandering claims. The Texas Map resulted in party

representation in the Texas congressional delegation that

closely reflected the percentage of the congressional vote each

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

undeniably closer to being proportional than the 2001

delegation elected under the interim court drawn map (or

elected under any other Texas congressional map in decades)."

Moreover, judging fairness in this regard, the Texas Map

exceeds both maps that were challenged, and upheld by the

Court, in Bandemer and Vieth.'?

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

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

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

1991 Democratic redistricting plan which was closely followed by a court

in 2001”).

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

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

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

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

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

Such quantitative “unfairness” also existed under the 2002 Pennsylvania

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

map resulted in Republicans controlling 63% of Pennsylvania’s

congressional seats despite the fact that Republican statewide candidates

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

of Commissions, Elections and Legislation, Pennsylvania Department of

State, 2004 Genera] Election Returns, available at

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

Archive (last visited Jan. 26, 2006).

11

There Is No History of Disproportionate Election

Results Visited Upon Appellants.

Texas electoral history displays no signs of

disproportionate election results affecting the Democratic Party.

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

Appellants benefited from disproportionate election results for

decades and the Texas Map merely corrected the Democrats’

disproportionate hold on the Texas congressional delegation.

Or, in the words of the Henderson Court:

The State’s description of the 2003 Texas legislative

plan as dismantling a prior partisan gerrymander that

had entrenched a minority party [the Democrats], in

order to allow a party with overwhelming statewide

voting strength [the Republicans] to capture two-

thirds of Texas’s congressional delegation, is a

characterization that the record supports. Henderson,

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

Moreover, Appellants’ complaint is based only upon the

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

a partisan gerrymandering claim is particularly difficult to

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

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

on a single election to prove unconstitutional discrimination is

unsatisfactory”). Indeed, without a finding that a

reapportionment will consign a political party to the minority

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

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

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

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

demonstrate anything of the sort.

12

There is No Indicia of Lack of Political Power and

Denial of Fair Representation.

In order to demonstrate lack of political power and denial

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

political group has “essentially been shut out of the political

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

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

interference with their fundraising, registration, organizing,

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

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

the polls, the Texas Democratic Party has successfully raised

money, registered voters, organized, and mounted vigorous

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

than being shut out from the process, the Texas Democratic

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

the Galveston County Democratic Party hosted a “Turn Texas

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

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

prominent national and state Democratic speakers such as

Democratic National Committee Chairman Howard Dean,

Texas Democratic Party Chairman Charles Soechting, 2004

Democratic vice-presidential nominee John Edwards, General

President of the United Steelworkers Union Leo Gerard, and —

notably — 2006 Texas Democratic congressional candidates

Nick Lampson and Shane Sklar. See Texas Democrats To Meet

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

13

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

registration activity by the Texas Democrats in 2004.”

1. The Vieth Plaintiffs’ Standard.

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

two-prong framework and identified specific factors for

determining whether a discriminatory effect had been visited

upon the purportedly disadvantaged political party. Under this

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

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

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

of the circumstances” confirms that the map can thwart the

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

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

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

sufficient evidence of discrimination, Appellants have not,

because they cannot, demonstrate that the Texas Map

. systematically cracks and packs Democratic voters. Justice

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

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

electorate from electing a majority of the representatives.” Jd.

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

') Travis County Democratic Party Chairman Chris Elliot issued a

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

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

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

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

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

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

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

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

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

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

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

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

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

14

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

congressional representation closer to proportionality than

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

plaintiffs’ standard the Texas 2001 interim court drawn map

would likely have been overturned as a partisan gerrymander.

2. The Vieth Dissenters’ Standards.

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

identifying unconstitutional partisan gerrymandering that

focused on individual districts, rather than on an entire

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

a five-step prima facie test for adjudicating partisan

gerrymandering claims. To meet this test, Appellants would be

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

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

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

were specific correlations between the district’s deviations

from traditional districting principles and the distribution of the

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

which includes the plaintiff's residence, remedies the packing

or cracking of their group, and deviates less from traditional

districting principles; and (5) that Appellees acted intentionally

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

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

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

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

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

the Texas Map fails this test when the very relief that

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

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

a partisan gerrymander.

The standard outlined in Justice Stevens’s dissent also

focuses on individual districts, rather than on an entire

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

15

partisan gerrymandering claims would be analyzed under strict

scrutiny — if partisan motivation was the predominant

consideration in drawing district lines, absent a showing of

neutral justificatory criteria, the district would be invalid. In

this case, however, no sophisticated analysis is necessary to

demonstrate that the Texas Map passes the test. A cursory

visual inspection of the Texas Map suffices to show that the

Texas Legislature adhered to traditional redistricting criteria,

particularly when compared to Texas’s last legislatively

enacted congressional map, the 1992 map."

Justice Breyer’s dissent sets forth several hypotheticals,

arranged on a continuum, which might indicate

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

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

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

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

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

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

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

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

that, if anything, it was the Democratic congressional

delegation that had been unjustifiably entrenched, and that the

Texas Map merely dislodged their entrenchment. Since 1994,

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

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

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

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

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

U.S. 952 (1996).

16

the Texas congressional vote since 1992, yet they held a

majority of the seats until 2004.‘

Il. THE VOTING RIGHTS ACT OF 1965 IS A

STATUTORY SHIELD TO PROTECT MINORITY

POPULATIONS, NOT A PARTISAN SWORD.

District 23 is represented by Henry Bonilla, a Hispanic

Republican. Appellants argue that Mr. Bonilla does not

constitute a “candidate of choice” for Hispanic-Americans

because he is a Republican. Conversely, Appellants argue that

Martin Frost, an Anglo Democrat who represented District 24

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

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

by Appellants’ interpretation of Section 2 of the Voting Rights

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

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

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

Act’s language and legislative history, leave Appellants without

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

the Act’s role in protecting and increasing minority

participation and access would be undermined. Moreover,

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

drawn into question.

Such a theory of partisan-blind racial bloc voting was

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

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

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

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

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

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

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

1991 Democratic redistricting plan which was closely followed by a court

in 2001”).

17

Justice White’s concurrence is virtually identical to Texas

District 23:

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

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

of the blacks vote with the whites to elect a black

candidate who is not the choice or the majority of

black voters. This is interest-group politics rather than

a rule hedging against racial discrimination. I doubt

that this is what Congress had in mind in amending §

2 as it did..."© Id. at 83.

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

cognizable minority population Section 2 requires districts be

drawn so that the minority-preferred Democrat usually wins,

has also been consistently recognized and rejected by lower

courts with the same justification."

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

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

concurring in judgment). See also Uno v. Holyoke, 72 F.3d 973, 981 (1st

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

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

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

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

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

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

exists in District 23.

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

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

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

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

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

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

County, 76 F.3d 1381, 1392 (6th Cir. 1996) (A “group that is too smail to

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

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

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

18

Appellants also argue that former District 24 should be

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

— the method by which the Texas legislature here chose to

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

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

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

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

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

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

Democratic district was created, District 9, that elected an

African-American Democrat. All of the other performing

minority districts, including Congressman Bonilla’s district,

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

minority representatives as they had previously. Indeed, the

Texas Map enhances minority representation. The prior map

had resulted in five Hispanic Democrats, one Hispanic

Republican, and two African-American Democrats, being

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

Democrats, three African-American Democrats, and one

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

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

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

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

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

™ Minority-majority districts are districts in which a majority of the

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

U.S. 997, 1023 (1994).

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

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

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

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

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

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

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

19

additional seat controlled by the Hispanic electorate was

created, District 25.

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

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

minority groups, is only further underscored by its legislative

history. Resulting from the violence that surrounded efforts in

early 1965 to register African-American voters in Selma,

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

not political party affiliation. Indeed, President Lyndon Johnson

was focused solely on ending practical barriers to minority

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

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

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

PRESIDENT OF THE UNITED STATES RELATED TO THE RIGHT

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

ending the practical barriers to voting faced by minorities is

further demonstrated by President Johnson’s speech to a special

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

The issue of equal rights cf American Negroes is [a

challenge to the values and purposes of America.] And

should we defeat every enemy, and should we double

our wealth and conquer the stars and still be unequal to

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

meet here tonight as Americans — not as Democrats or

Republicans — we are met here as Americans to solve

that problem.” Jd. (emphasis added).

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

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

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

Leader, Mr. Mansfield, and the Senator from I}inois, the Minority Leader,

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

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

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

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

20

The Act’s legislative history, saturated with discussion

about ending barriers to minority voting, is virtually absent of

any reference to political party representation. Indeed, the

legislative history expressly disclaims congressional intent to

establish any right to have members of even protected classes

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

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

identifiable groups having a right to be elected in proportion to

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

proportional representation as a remedy.”).

21

their voting potential was repugnant to the democratic

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

are entitled to have an equal chance of electing candidates of

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

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

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

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

Finally, to argue that elected Republicans would play such

an integral role in legislation designed to elect more Democrats

defies common sense. The Act itself, it is widely

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

the Republican Senate Minority Leader from Illinois.” One

historian describes the Republican Senator’s role as follows:

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

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

even than produce the necessary votes to enact them.

He also did what few of his colleagues were capable

of doing: he played the principal role in drafting their

language, and thus determined their exact legislative

thrust and intent. NEIL MACNEIL, DIRKSEN:

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

1970) (emphasis added).

It is hard to imagine that Senator Dirksen intended for the

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

22 _Notonly did Senator Dirksen play a large role in the Act’s drafting, but

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

EVERETT DIRKSEN AND HIS PRESIDENTS: HOW A SENATE GIANT SHAPED

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

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

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

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

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

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

had a chance to lobby for the bill”).

22

account, in a conversation with his Republican Senate

colleagues Senator Dirksen stated: “Republican senators [will]

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

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

PRESIDENTS: How A SENATE GIANT SHAPED AMERICAN

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

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

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

protection of racial minorities.

CONCLUSION

For the reasons set forth above, amicus RNC urges the

Court to affirm the District Court decision.

Respectfully submitted,

THOMAS J. JOSEFIAK

Counsel of Record

SEAN CAIRNCROSS

REPUBLICAN NATIONAL

COMMITTEE

310 First Street, S.E.

Washington, D.C. 20003

(202) 863-8500

February 1, 2006 Counsel for Amicus Curiae

OVYOW |

Nos. 05-204, 05-254, 05-276 and 05-439

3n The

Supreme Court of the Gnited Sesus

+

LEAGUE OF UNITED LATIN

AMERICAN CITIZENS, et al.,

Appellants,

Vv.

RICK PERRY, et ai.,

Appellees.

.

TRAVIS COUNTY, TEXAS, et ai.,

Appellants,

Vv.

RICK PERRY, et ai.,

Appellees.

+

‘On Appeal From The

United States District Court

For The Eastern District Of Texas

¢

BRIEF OF AMICUS CURIAE UNIVERSITY

PROFESSORS CONCERNED ABOUT EQUAL

REPRESENTATION FOR EQUAL NUMBERS

OF PEOPLE IN SUPPORT OF APPELLANTS

¢

Lucas A. POWE, JR.

Counsel of Record

727 East Dean Keeton Street

Austin, Texas 78705-3299

(512) 232-1345

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

EDDIE JACKSON, et ai.,

Appellants,

v.

RICK PERRY, et ai.,

Appellees.

+

GI FORUM, et al.,

Appellants, °

V.

RICK PERRY, et ai.,

Appellees.

QUESTION PRESENTED

May a legislative body, in mid-decade, voluntarily and

without a compelling reason replace a valid districting

plan with a new one relying on the population data from

the last census?

li

“TABLE OF CONTENTS

Page

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Sy INIT cies cicindiesnionbseesticdibecscciidbainiieséignennaaiues iii

Interest Of Amicus Curiae ..:..00...000sesssccsosessesscscesccsseseees 1

I a sittcicscnicitesitinitennsesvitiiapiibitiiiciaitag 2

I ciiciisnenisinhiticinitnneremssesnensiiindinasnntcitiididiimnianes tiie 4

I. Voluntary Redistricting Using Inaccurate

Population Data is a Threat to Fundamental

Constitutional Rights and Representative

I iniccissnnisecccrensibtiiclineincsceitntiilevnstipvianiias 4

Il. The Constitution of the United States Prohib-

its Redistricting With Inaccurate Population

Data to Replace a Lawful Existing Districting

Plan Except in Furtherance of a Compelling

State Interest and as Narrowly Tailored to

SD SND PID ccccscniineschtescsesisbcasintontssniectnass 13

Ill. The District Court Below Erred by Upholding

the 2003 Congressional Redistricting Plan....... 17

IV. Application of the Equal Population Require-

ment Provides a Common Sense, Easily Ad-

ministered Means of Preventing the Harms

Identified by the Appellants in this Case.......... 22

FEE ccccesccenssqscceccensnssrscainvenecsinninnetnsusensionense 26

TABLE OF AUTHORITIES

Page

CASES ‘

Burns v. Richardson, 384 U.S. 73 (1966)............ccccccceeeees 24

Bush v. Vera, 517 U.S. 952 (1996)..........ccccccsreseersesereeeenes 16

Karcher v. Daggett, 462 U.S. 725 (1982)..........s0ecceee 13, 14

Kirkpatrick v. Preisler, 394 U.S. 526 (1969)......... 13, 14, 16

Larios v. Cox, 300 F.Supp.2d 1320 (N.D. Ga), aff’d,

Cox v. Larios, 124 S. Ct. 2806 (2004) ...........cccseeeeseeeeees 24

Reynolds v. Sims, 377 U.S. 533 (1964)............00000 13, 16, 20

Vieth v. Jubelirer, 541 U.S. 267 (2004) .............ccecceeeeees 4, 22

Westberry v. Sanders, 376 U.S. 1 (1964) ..........ccceseeeeeeeeeees 13

White v. Weiser, 412 U.S. 783 (1973).........:cceseeresersesessenes 24

CONSTITUTION AND STATUTES

United States Constitution, Article I, Section 2............... 13

United States Constitution, Fourteenth Amend-

ERIE. nacsorecesnsennatnaneptnnnsinsstnentnasnseusninntaeesicieniheuninnniaanen 13

1

INTEREST OF AMICUS CURIAE

This Amicus Curiae brief is submitted on behalf of the

University Professors Concerned About Equal Representa-

tion For Equal Numbers of People. The individual Amici

are Professors David A. Anderson (University of Texas),

Julius P. Getman (University of Texas), Teresa R. LeClercq

(University of Texas), Sanford V. Levinson (University of

Texas), Lucas A. Powe, Jr. (University of Texas), Jordan

Steiker (University of Texas), Jay L. Westbrook (Univer-

sity of Texas), and John Aldrich (Duke University).' This

Amicus organization is submitting this brief because of

concern over the impact of this case on the fundamental

principle that legislative bodies must make a good faith

effort to provide the citizens of a state with election dis-

tricts as equal in population as practicable. The resolution

of this case will be significant to the constitutional juris-

prudence of this country.

The “University Professors” participated fully in this

case on remand as an Amicus. The District Court below

sua sponte required the State Defendants to respond to the

Amicus brief and required the Plaintiffs to provide time at

the hearing on January 21, 2005 for an oral presentation

by Professor Powe on behalf of Amicus. Much of the lower

court’s written opinion deals with the written and oral

arguments presented by Amicus. The equal representation

for equal numbers of persons issue addressed by Amicus

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

of consent have been filed with the Clerk of this Court. Pursuant to this

Court’s Rule 37.6, Amicus states that none of the parties authored this

brief in whole or in part and no one other than the Amici or counsel

contributed money or services to the preparation and submission of this

brief.

2

below and in this brief is essentially raised by two of the

Appellants’ in this consolidated case. The Amici believe

that the information provided in this brief will assist this

Court in resolving the difficult questions posed in this

case. 4

+

SUMMARY OF ARGUMENT

The congressional redistricting plan passed by the

Texas legislature in 2003 was drawn voluntarily and for

partisan reasons. It replaced a lawful existing plan. These

facts distinguish this case from the many other redistrict-

ing cases decided by this Court in the past forty years. The

new plan utilized population data that were outdated and

inaccurate. This Court has never directly considered

whether a partisan use of the electoral process under such

circumstances is constitutional.

Appellees claimed in the court below that any legisla-

tively enacted redistricting plan complies with the consti-

tutional requirement for equal population among election

districts so long as it contains districts that are equal in

population based on the enumeration from the last federal

decennial census. Amicus urges that the constitutional

mandate requires that a legislature cannot voluntarily

redistrict using population data that is known to be outdated

and inaccurate unless a compelling state reason exists for

the redistricting and the use of the data. Otherwise such

* The Travis County Appellants and the League of Latin American

Citizens Appellants have raised similar “one person, one vote” or “equal

population” challenges to the 2003 Texas redistricting. This Amicus

Curiae Brief is submitted in support of these Appellants, but is not

submitted in opposition to the position of any Appellant.

redistricting, to further the partisan designs of a tempo-

rary legislative majority, is a breach of a legislature’s

fundamental duty to make a good faith effort to provide its

citizens with election districts as equal in population as

practicable.

Appellees’ legal position is a threat to representative

government in this country. This brief discusses several of

the dangers inherent in Appellees’ position. One threat,

however, stands out as a result of oral argument in the

court below. In response to a question from that court,

Appellees’ counsel correctly acknowledged that, if the

Appellees’ legal position is correct, a state legislative body

can voluntarily redraw state legislative districts at the end

of a decade (e.g., 2009) using data from the prior federal

decennial census. Such a possibility means that a tempo-

rary political majority in a highly charged partisan envi-

ronment can voluntarily redraw state legislative districts

immediately prior to elections at the end of a decade (e.g.,

2010) notwithstanding population shifts in the state over

the decade. Through this maneuver, a temporary partisan

or interest majority can redistrict to preserve or enhance

its political advantages and thereby unfairly control the

redrawing of state and congressional districts after the

new census.

Many other state and local government officials have

already publicly expressed an interest in the possibility of

following the Texas example and redrawing existing

election districts during this decade to benefit one partisan

or special interest over another. Others will surely do so if

this Court upholds the Texas congressional redistricting

plan. Such a prospect of a “rolling redistricting” on the

basis of old, inaccurate population data is anathema to the

constitutional principle of one person, one vote and a

4

threat to representative government. It would constitute

further unfortunate confirmation of representatives

picking their voters rather than vice versa.

Adoption by this Court of the position urged by

Amicus in this brief can end this threat through the

common sense, easily administered application of existing

constitutional principles.

+

ARGUMENT

I Voluntary Redistricting Using Inaccurate

Population Data is a Threat to Fundamental

Constitutional Rights and Representative Gov-

ernment.

Few, if any, officials have suggested that voluntary

redistricting mid-decade is a good policy. Virtually any

redistricting is likely to be divisive, distracting, confusing

to voters, and costly of legislative time and energy. As

shown by the extraordinary events in Texas in 2003, a

voluntary mid-decade redistricting undertaken to main-

tain or enhance a temporary majority's political strength is

likely to be even more disruptive. Voluntary redistricting

mid-decade by a state or local legislative body using

inaccurate population data is a way of thwarting political

changes that would normally accompany population

changes and shifting voter preferences. As Justice Breyer

recognized in his dissent in Vieth v. Jubelirer,’ a political

party might redistrict periodically during a decade to

* 641 U.S. 267 (2004).

5

preserve its political advantages notwithstanding popula-

tion shifts in the state. A temporary majority in a state

legislative body may redistrict state legislative districts at

the end of a decade to permit itself to maintain or enhance

its dominance for the critical time of redistricting after the

new census. The court below asked Appellees’ counsel

whether Appellees’ legal position in this case would permit

such a redistricting for partisan advantage at the end of a

decade, and Appellees’ counsel correctly answered that it

would.‘

The 2003 redistricting in Texas is a perfect example of

how Justice Breyer’s concerns were fulfilled. The final

redistricting plan passed in Texas was unlike either of the

plans passed earlier in the legislative session by the Texas

Senate or the Texas House. The conference committee that

was charged with resolving differences between the two

plans never met. Instead, the final plan was accomplished

literally behind closed doors by a handful of like-minded

partisan activists using computers to manipulate data

from a variety of political data bases designed to predict

how each election precinct statewide would perform in

future congressional elections. Plans were endlessly

tweaked on computer monitors to achieve the best possible

partisan result. All of this secret activity occurred under

scrutiny and pressure from external partisan interests.

The 2003 memoranda’ from Mr. Jim Ellis to Congressman

Tom DeLay provide a valuable insight into what was

actually happening throughout 2003 and at this final

stage. In his memorandum of October 5, 2003, Ellis notes

* Transcript at 138-139 (January 21, 2005).

* Jackson Pls. Exhibit No. 136.

6

that he and Congressman DeLay had already achieved the

goals of “helping Bonilla (District 23) and eliminating the

Frost district (District 24)” through changes achieved at

the conference committee. However, Ellis urged that

further “major adjustments must be made to ensure that

the map reflects the priorities of the congressional delega-

tion and not the legislature.” Ellis lamented that the map

under consideration at the time -vas still flawed with

“largely insignificant state legislative agendas.” Ellis

concluded his October 5th memorandum to DeLay with

the insistence that “[wle need our map, which has been

researched and vetted for months. The pre-clearance and

political risks are the delegation’s and we are willing to

assume those risks, but only with our map.”

Congressman DeLay journeyed again to Austin. For

the next few days he met with the state officials. Ellis got

his wish. The final redistricting map was unveiled on

October 9th, only three days before it was finally passed

by an exhausted Texas Legislature. This final plan embod-

ied an extreme partisan aggressiveness. Unlike the maps

adopted earlier by the Texas House and Texas Senate, this

final plan bolstered Republican Congressman Bonilla’s

District 23 with Anglo Republican counties, dismantled

District 24 (Congressman Frost), and targeted every Anglo

Democratic incumbent for defeat by dismantling their

existing districts and leaving their residence in a heavily

Republican district. The plan was a partisan masterpiece

that not only resulted in the immediate (2004) gain by

Republicans of six seats in Congress from Texas,’ but will

‘Id

* The plan resulted in a loss of six Democratic seats in Congress.

Four Democratic incumbents were defeated for reelection in the 2004

(Continued on following page)

7

control the outcome in Texas congressional elections for

the foreseeable future notwithstanding expected popula-

tion shifts that otherwise should favor Democrats.

Voluntary redistricting may use unreliable federal

decennial census data to disguise redistricting plans

drawn to unfairly discriminate in a real sense against

vertain categories of voters. By using more current politi-

cal and demographic data, such as voting trends (in voter .

registration, voter turnout, and partisan tendency), to

determine district boundaries, a temporary legislative

majority may pack opposing voters in as few districts as

possible or counter an anticipated future growth in oppos-

ing voters in an election district by removing the voters

from the endangered district. This discrimination may be

disguised by the use of old, currently inaccurate census

data to justify the new district configurations.

general election (Congressmen Max Sandlin, Nick Lampson, Martin

Frost and Charles Stenholm). One Democratic congressman (Jim Turner)

declined to seek reelection in his redrawn district that contained only 4%

of the residents of his previous district. One Democratic congressman

(Ralph Hall) switched parties after the redistricting and won reelection

in 2004 in his redrawn district as a Republican. Democratic Congress-

man Chris Bell was drawn out of his district and placed in a heavily

Republican district. He sought reelection in a nearby congressional

district, but lost in the Democratic Primary te African-American

candidate Ai Green. Only three of the ten Anglo Democratic incumbents

won reelection as Democrats in 2004. Two of these won reelection only

by running in nearby districts that are overwhelmingly Hispanic. The

overall result of the redistricting was the defeat, retirement or switch of

seven of the ten targeted Anglo incumbent congressmen, the gain by

Republicans of six seats in Congress, and the marginalization of the

Democratic Party in Texas by the packing of Democratic voters into ten

districts, each with a minority population (according to the 2000

census) of over 70%. Only one Democrat, Congressman Chet Edwards,

won election in a district with less than a 71% minority population.