Amicus Curiae Brief — Evenwel v. Abbott, 135 S. Ct. 2349 (2015) (No. 14-940)

Supreme Coun. US

FILED

AUG - 7 2015

No. 14-940 OFFICE OF THE CLERK

3n The

Supreme Court of the Anited States

SUE EVENWEL, ET AL..,

Appellants,

Vv.

GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS

GOVERNOR OF TEXAS, ET AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

BRIEF OF DEMOGRAPHERS

PETER A. MORRISON, THOMAS M. BRYAN,

WILLIAM A. V. CLARK, JACOB S. SIEGEL,

DAVID A. SWANSON, AND

THE PACIFIC RESEARCH INSTITUTE

AS AMICI CURIAE IN SUPPORT OF APPELLANTS

C. DEAN MCGRATH, JR. BRADLEY A. BENBROOK

McGrath & Associates Counsel of Record

1025 Thomas Jefferson St. NW STEPHEN M. DUVERNAY

Ste. 110G Benbrook Law Group, PC

Washington, D.C. 20007 400 Capitol Mall, Ste. 1610

(202) 295-2304 Sacramento, CA 95814

(916) 447-4900

brad@benbrooklawgroup.com

August 2015 Counsel for Amici Curiae

QUESTION PRESENYED

In Reynolds v. Sims, 377 U.S. 533 (1964), this

Court held that the Equal Protection Clause of

the Fourteenth Amendment includes a “one-

person, one-vote” principle. This principle re-

quires that, “when members of an elected body

are chosen from separate districts, each district

must be established on a basis that will insure, as

far as is practicable, that equal numbers of voters

can vote for proportionally equal numbers of offi-

cials.” Hadley v. Junior Coll. Dist. of Metro. Kan-

sas City, Mo., 397 U.S. 50, 56 (1970). In 2013, the

Texas Legislature enacted a State Senate map

creating districts that, while roughly equal in

terms of total population, grossly malapportioned

voters. Appellants, who live in Senate districts

significantly overpopulated with voters, brought a

one-person, one-vote challenge, which the three-

judge district court below dismissed for failure to

state a claim. The district court held that Appel-

lants’ constitutional challenge is a judicially un-

reviewable political question.

The question presented is whether the “one-

person, one-vote” principle of the Fourteenth

Amendment creates a judicially enforceable right

ensuring that the districting process does not de-

ny voters an equa! vote.

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................000eee00 i

TABLE OF AUTHORITIES .................0eseeeeeeees iv

INTEREST OF AMICUS CURIAE .........000ce0s00 1

INTRODUCTION AND SUMMARY OF

GEES srevscscccscsersecessessncsnencesevescoenes 3

FEIN E cecccevcececsececessceesesoncceveoucosccsessenees 5

I. The Census Bureau Designed And

Implemented The American Community

Survey To Furnish Detailed Demographic

Data On An Ongoing Basis For Places of

SETI incisinsiiiiiieiadakadiadaaeiiniinaikeniencaibtinidioiis 5

A. The ACS Has Modernized The Census

Bureau’s Collection Of Demographic

STII scinssnnsaeinteuioneniatenduisinidseiiibisiniiennitteapin 5

B. The Federal Government Relies On

ACS Data To Administer Federal

Il. The Bureau Calculates CVAP From

ACS Data And Publishes Annual] Updates

In A Readily Accessible Format ........... 12

Ill. CVAP Data Are Routinely Used To

Prove And Remediate Inequalities In

WUE tntccnddenoedatesieincisuiinnneitiineianicansidedinene 15

il

A. The Judiciary Has Determined That

CVAP Data Are Necessary In Section 2

Claims, And State And Local

Governments Rely On Them When

as censaneinouneniings 15

B. CVAP Was A Key In Measuring

Compliance With Section 5 Of The

Voting Rights Act ......................02..02005 20

C. Congress Relied On CVAP Data To

Protect Minority Voting Rights In

Section 203 Of The VRA ..................... 22

ITV. Demographers Can Use Straightforward

Techniques To Construct State And

Local Voting Districts Of Substantially

ST TTI si see essiecepenie tetilntlabinntiinneaninselicebdies 23

V. Redistricting Based On Survey Data Fits

Comfortably Within The Court’s Decisions

Recognizing That Redistricting Is Not A

Precise Mathematical Exercise .............. 27

EIEN sscsnesconcnicerncssincinsesndotinnsesoonmiennuniess 31

1V

TABLE OF AUTHORITES

Cases Page

Barnett v. City of Chicago,

141 F.3d 699 (7th Cir. 1998)...............ccccccccceeeeeeeees 18

Bartlett v. Strickland,

EES Ee Ren eee ee 17

Brown v. Thompson,

EE ERE cane Te oer 30

Campos v. City of Houston,

113 F.3d 544 (6th Cir. 1907).................0..cc.0000. 17, 18

Connor v. Finch,

NC ee ee eee 29

Gaffney v. Cummings,

I I< noni sc atrintininnatiiindensanediin 28, 29, 30

Georgia v. Ashcroft,

ERNE Ree eae eee SONS 29

Hadley v. Junior Coll. Dist. of Metro. Kansas City,

ee A Ee SITTIN ctiinccinlccrieciciceteaeniainigeasdiniandeiiias i

League of United Latin Am. Citizens v. Perry,

SE aT cei icinsideineapesieinihiaitaiianatienilinniv 16, 29

Mahan v. Howell,

ee TI cticeiineinieiicentsistatiintiniansiinbinsiibienieniniion 29

Negron v. City of Miami Beach,

113 F.3d 1563 (11th Cir. 1997)......................ccece0e 17

Pender Cnty. v. Bartlett,

Ek Ee 17

Reynolds v. Sims,

a SEE SR a ae aT passim

Romero v. City of Pomona,

883 F.2d 1418 (9th Cir. 1989)........0......0cccccc cece 17

Shelby County v. Holder,

570 U.S. > | &> S >. |. |) See 20

Swan v. Adams,

I ieee 29

Texas v. United States,

I ead 21

Texas v. United States,

887 F.Supp.2d 133 (D. D.C. 2012)... 21

Thornburg v. Gingles,

ET a eae ema 15, 16, 17

Townsend v. Holman Consulting Corp.,

914 F.2d 1136 (9th Cir. 1990).........................000008. 17

United States v. Sch. Bd. of Osceola Cnty.,

No. 6:08-cv-00582-GKS-DAB (M.D. Fla. Apr. 16,

SII Gintiendetncaesaiiniglambieditidinsediitiaedidmmgunedenmntineseanis 19

United States v. Town of Lake Park, Fia.,

No. 09-cv-80507-KAM (S.D. Fla. Mar. 31, 2009) ..19

United States v. Village of Port Chester,

No. 06-civ-15173 (S.D.N.Y. Dec. 15, 2006)............ 19

Voinovich v. Quilter,

I easel 30

Statutes

REAR a yi sce Roe a ROE 10

42 U.S.C. § 13895w-4(e)(1)(H)(v)(ID) ..... 02... eeeeee 10

Sr ccalstepihsliaeuaiidiiaie 15

URIS NI iia hacia inten ib lanaenilaiceaailiaidnia 22

Other Authorities

Arizona Independent Redistricting Commission,

United States Dep’t of Justice Submission Under

Section 5 of Voting Rights Act, State of Arizona

Legislative Redistricting Plan (Feb. 28, 2012)......21

Br. for the United States as Amicus Curiae

Supporting Appellees, League of United Latin Am.

Citizens v. Perry (2006) (Nos. 05-204, 05-254, 05-—

IIIT, iiisa dirk iastietiscaieeseeorncideiadinniiainadaninisidienenbinions 16

Bruce E. Cain & Karin Mac Donald,

Voting Rights Act Enforcement: Navigating

Between High and Low Expectations, in The Future

of the Voting Rights Act (David L. Epstein et al.,

Congressional Research Service,

The 2010 Decennial Census: Background and

ET a er 5

Congressional Research Service,

The American Community Survey: Development,

Implementation, and Issues for Congress (June 17,

ERE ae a er ee Nor TO ceo 6, 7, 10, 12

Mark Doms,

The American Community Survey: Best Quality

Data with the Least Public Burden

I a hai leicesinaeineesiii 11

Lapkoff & Gobalet Demographic Research, Inc.,

Redistricting Report to the Board of Trustees

Hartnell Community College District (Oct. 13,

ITITTIIED ‘scicessinscicistiantihneideaiiienstiaiiasieipihiaiaiata tuddddiatamiianiiniieadaidamaseniia 18

Michael! Li,

Updated demographic data for Texas legislative &

congressional maps, Texas Redistricting & Election

Law, http://txredistricting.org/

post/78929777903/updated-demographic-data-for-

texas-legislative (Mar. 8, 2014) ...................000..0004 20

vill

March 18, 2015 Memorandum of Peter A. Morrison

to Waterbury, Connecticut, Board of Alderman

regarding the City of Waterbury 2015 Aldermanic

ERNE ARE I Wes Oe ee RR OE 18

Catherine McCully,

Designing P.L. 94-171 Redistricting Data for the

Year 2020 Census (U.S. Census Bureau Dec. 2014)

State Appellees’ Br., League of United Latin Am.

Citizens v. Perry, 548 U.S. 399 (2006) (Nos. 05-204,

ee, ee PSE circcccccssenscndinsecensscnccnsvessnes 16

State of California Citizens Redistricting

Commission, Final Report On 2011 Redistricting

EE 19

Nicholas Stephanopoulos & Eric McGhee,

Partisan Gerrymandering & the Efficiency Gap, 82

Se ec ls Sts SN EE echscicstnsopnncsnsnintecncsuscuvennds 30

Texas Legis. Council,

Estimating Citizenship Voting Age Population

Data (CVAP), Addendum to Data for 2011

Redistricting in Texas (March 2013)..................... 20

U.S. Census Bureau,

A Compass for Understanding and Using

American Community Service Data: What Congress

Needs to Know (2008)...............02cccceeeeeeeeeeeees 9,10, 11

ix

U.S. Census Bureau,

A Compass for Understanding and Using

American Community Service Data: What General

Data Users Need to Know (2008)..............0.0...000000. 14

U.S. Census Bureau,

American Community Survey Design and

Methodology (Jan. 2014) ...........cccccceeeceeeeccseseeceeceeeess 6

U.S. Census Bureau,

American Community Survey Information Guide

a ERS PERE 7, 8, 9, 10

U.S. Census Bureau,

American Community Survey, Questions on the

I WI I iicccidincmicasicacneconinciocisccsenesnes 1]

U.S. Census Bureau,

Frequently Asked Questions, Can you tell me more

about group quarters (GQ) or group housing

facilities in the American Community Survey

SURETY ceispnsunlintonnliddaieheaseansacieiieiiedhieaibideeiebiganicinmnmusieniie 7,8

U.S. Census Bureau,

Methodology for the United States Population

Estimates: Vintage 2014 (2014) ..........0......cc0cccceceee 27

U.S. Census Bureau,

Subjects Planned for the 2010 Census and

American Community Survey: Federal Legislative

and Program Uses (2008).............-0.0c0ccccececseeseseeeees 11

U.S. Comm’n on Civil Rights,

Redistricting and the 2010 Census:

Enforcing Section 5 of the Voting Rights

RARE RS ES aE 20, 21

U.S. Dep’t of Commerce Economics & Statistics

Admin., The Value of the American

Community Survey: Smart Government,

Competitive Businesses, and Informed Citizens

I ete el bentrccscescocescniscesnsunsasaniniciddiamunniaial passim

U.S. Dep’t of Commerce,

The American Community Survey (2015

I TD cintcsvcnceccantconinivansbadincaniidaiiaduats 12

INTEREST OF AMICI CURIAE!

Peter A. Morrison, Ph.D., is an applied demog-

rapher and the founding director of RAND Corpo-

ration’s Population Research Center. Now retired

from RAND, he consults as a demographer with

expertise in measuring the racial, ethnic, and cit-

izenship composition of local populations. He has

decades of experience constructing and evaluating

local districting plans that comply with Voting

Rights Act requirements. He has been appointed

to committees of the National Academy of Scienc-

es, chaired the U.S. Census Bureau’s Advisory

Committee on Population Statistics, and served

as an invited participant on the Bureau’s Working

Group on Race and Ethnicity, 2010 Decennial

Census. He has been elected President of the

Southern Demographic Association and as a Di-

rector of the Population Association of America.

Dr. Morrison served as a paid consultant for Ap-

pellants in the underlying litigation.

Thomas M. Bryan, M.1.S, M.U.S., is Principal,

Bryan GeoDemographics, and a specialist in geo-

graphic information systems (“GIS”) and geospa-

tial analysis. A former Census Bureau analyst, he

has extensive technical experience accessing,

evaluating, and applying American Community

Survey data for local redistricting. He served as a

1 All parties have consented to the filing of this brief. In

accordance with Rule 37.6, no counsel for a party authored

this brief in whole or in part, and no counsel or party made

a monetary contribution intended to fund the preparation or

submission of this brief. No person other than amici curiae,

their members, or their counsel made a monetary contribu-

tion to its preparation or submission.

paid consultant for Appellants in the underlying

litigation.

William A. V. Clark, Ph.D., is Distinguished

Professor Emeritus of Geography and Statistics at

UCLA. Professor Clark has extensive experience

evaluating redistricting plans using census data,

is an elected Member of the National Academy of

Sciences, and a Fellow of the American Academy

of Arts and Sciences.

Jacob S, Siegel, M.A., is a private consultant

at J. Stuart Siegel Demographic Services. Previ-

ously he was a Senior Demographic Statistician

at the U.S. Census Bureau and a Professorial

Lecturer in Demography at Georgetown Universi-

ty. He is the primary author of the Methods and

Materials of Demography, which demographers

regard as the authoritative source of technical

demographic methods, and the author of Applied

Demography. He is a former President of the

Population Association of America.

David A. Swanson, Ph.D., is a Professor of So-

ciology at the University of California, Riverside.

Professor Swanson has chaired the U.S. Census

Bureau’s Scientific Advisory Committee and the

Population Association of America’s Applied De-

mography Committee and served as editor of

Population Research and Policy Review. With Mr.

Siegel, he co-edited the second edition of The

Methods and Materials of Demography.

The Pacific Research Institute (“PRI”) is a non-

profit non-partisan 501(c)(3) organization that

champions freedom, opportunity, and personal re-

sponsibility by advancing free-market policy solu-

tions to the issues that impact the daily lives of

Americans. Founded in 1979 and based in San

Francisco, PRI is supported by private contribu-

tions. Its activities include compilation, assess-

ment, evaluation and analysis of complex statisti-

cal data, and the publication of studies based on

such data.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Appellants contend that it violates the one-

person, one-vote principle when States, such as

Texas, dilute the power of citizens’ votes by as

much as 50% compared to other voters in nearby

districts. Here, Texas refused to reduce these im-

balances despite having the data—citizen voting

age population (CVAP) statistics compiled by the

United States Census Bureau—and the means

available to do so.

Amici demographers will demonstrate that

States and political subdivisions can—and, in

many cases, already do—take CVAP into account

when developing redistricting plans. Using official

Census Bureau data, professional demographers,

such as amici, can readily establish district

boundaries that divide citizen voting-age popula-

tion on a “substantially equal” basis. Reynolds v.

Sims, 377 U.S. 533, 578-79 (1964).

The foundation for this demographic work is

the citizenship data collected through the Census

Bureau’s American Community Survey (“ACS”).

The Bureau designed and implemented the ACS

to collect detailed demographic information on an

ongoing basis. The ACS, which replaced the “long

form” questionnaire beginning with the 2010 De-

cennial Census, collects a broad range of demo-

graphic data covering citizenship and other eco-

nomic, social, housing, and financial] characteris-

tics. The survey is administered on a rolling basis

and reaches approximately 3.5 million households

each year. The federal government relies on ACS

data to, among other things, serve as the basis for

distributing more than $450 billion in federal

programs.

The Census Bureau compiles running 1-, 3-,

and 5-year summaries of ACS data and publishes

them on its website. The Bureau’s data tables in-

clude CVAP at every level of geography for which

ACS data are collected throughout the Nation.

These tables, in turn, allow demographers, legis-

lators, and the general public to calculate a juris-

diction’s CVAP with relative ease.

The reliability of the Census Bureau’s CVAP

data is demonstrated by its widespread use and

acceptance. The Justice Department, States and

local governments use CVAP data to ensure com-

pliance with the Voting Rights Act (“VRA”). This

Court, U.S. Courts of Appeals, and district courts

have also relied on CVAP data. For example,

CVAP is a necessary consideration when evaluat-

ing minority voting-strength under Section 2 of

the VRA. CVAP was likewise a key metric when

assessing retrogression under Section 5 of the

VRA. And CVAP data govern whether States and

localities must provide non-English language bal-

lot materials under Section 203 of the VRA.

In short, the Bureau’s CVAP data is reliable

enough to allow states, like Texas, to draw, ana-

lyze, and adjust voting district boundary lines of

substantially equal numbers of eligible voters.

ARGUMENT

I. The Census Bureau Designed And Imple-

mented The American Community Survey

To Furnish Detailed Demographic Data

On An Ongoing Basis For Places Of All

Sizes.

The Census Bureau conducts a decennial

enumeration of persons in the United States pur-

suant to Article 1, section 2 of the Constitution.

The Bureau’s mandate, however, is not limited to

the enumeration. The Bureau collects detailed in-

formation from residents on an ongoing basis

through the ACS.?

A. The ACS Has Modernized The Cen-

sus Bureau’s Collection Of Demo-

graphic Data.

For nearly 60 years, the Census Bureau sup-

plemented its decennial census with a “long form”

questionnaire that elicited detailed socioeconomic

and housing information from a sample of the

population. Congressional Research Service, The

2010 Decennial Census: Background and Issues 3

(Feb. 3, 2011). Prompted by declining response

rates, increasing costs, and expanding needs for

2 This is one of numerous Bureau surveys that supple-

ment the decennial census. 13 U.S.C. § 193. In addition to

the ACS, among the most widely relied on national sample

surveys are the Current Population Survey (CPS),

http://www.census.gov/cps/, and the Survey of Income and

Program Participation (SIPP), http://www.census.gov/sipp/.

3’ Online at https://www.census.gov/history/pdf/2010-

background-crs.pdf (all internet materials as visited Aug. 4,

2015).

timely demographic data following the 1990 Cen-

sus, the Census Bureau “began developing and

testing a new means of data collection called a

‘rolling sample’ or ‘continuous measurement’ sur-

vey that became the American Community Sur-

vey.” Congressional Research Service, The Ameri-

can Community Survey: Development, Implemen-

tation, and Issues for Congress 1 (June 17, 2013)

(ACS Development and Implementation).*

After extensive testing and analysis, the Bu-

reau implemented the ACS nationwide in 2005

and 2006, and it stopped using the “long form”

with the 2010 Census. U.S. Census Bureau,

American Community Survey Design and Meth-

odology 5-9 (Jan. 2014) (ACS Design and Method-

ology).5 The Bureau assigns thousands of field

representatives across the Nation to administer

the ACS. Id. at 2. They are supported by Bureau

field partners in six regional offices, survey man-

agers at a Bureau processing center in Indiana,

and call centers in Arizona, Maryland, and Indi-

ana. Jd. Recipients of the survey must provide an-

swers—participation is not voluntary—and many

of these resources are used for following up with

non-responders.®

4 Online at https://ww w.fas.org/sgp/crs/misc/R41532.pdf.

5 Online at http://www2.census.gov/programs-surveys/

acs/methodology/design_and_methodology/acs_design_meth

odology_report_2014.pdf.

6 See U.S. Dep't of Commerce Economics & Statistics

Admin., The Value of the American Community Survey:

Smart Government, Competitive Businesses, and Informed

Citizens 9 (April 2015) (Value of the ACS), online at

http://www.esa.gov/sites/default/files/the-value-of-the-

“Since its start,” the Bureau notes, “the ACS

has been providing a continuous stream of updat-

ed information for states and local areas, and will

revolutionize the way we use statistics to under-

stand our communities.” U.S. Census Bureau,

American Community Survey Information Guide

2 (April 2013) (ACS Information Guide).? The

survey is currently sent to approximately 295,000

addresses each month—nearly 3.54 million ad-

dresses annually—in all 3,141 counties in the 50

states, the District of Columbia, and Puerto Rico.

ACS Development and Implementation at 11; ACS

Design and Methodology at 10. “The large sample

size affords comprehensive coverage of the Nation

and permits statistically reliable estimation for

small and large geographic areas.” Value of the

ACS, supra note 6, at 5.

The Bureau obtains its survey address data

from its Master Address File (MAF)—the Bu-

reau’s “official inventory of known housing units

(HUs), group quarters (GQs),° and selected non-

acs.pdf (“The mandatory nature of the survey ensures that

the sample sizes for all areas are sufficient for reliable sta-

tistics.”).

7 Online at http://www.census.gov/programs-surveys/acs/

about/information-guide. html.

8 “Group quarters include such places as college residence

halls, residential treatment centers, skilled nursing facili-

ties, group homes, military barracks, correctional facilities,

and workers’ dormitories. Group quarters are categorized

into two groups, institutional and non-institutional, in the

ACS estimates. Institutional group quarters: Includes facili-

ties for people under formally authorized, supervised care or

custody at the time of interview, such as correctional facili-

ties, nursing facilities/skilled nursing facilities, in-patient

hospice facilities, mental (psychiatric) hospitals, group

residential units (public, private, and commer-

cial).” ACS Design and Methodology at 18. Since

2000, the Bureau has also developed and updated

in the MAF an inventory of “special places (SPs),”

which are “places such as prisons, hotels, migrant

farm camps, and universities.” Jd. at 26.

The ACS collects data in five general catego-

ries:

1. Demographic characteristics—such as

age, sex, Hispanic origin, race;

2. Economic characteristics—suc!: as in-

come, work status, occupation;

3. Social characteristics—such as citizen-

ship, ancestry, place of birth, education,

and disability;

4. Housing characteristics—such as age of

structure and number of rooms; and

5. Financial characteristics—such as hous-

ing value and rent.

U.S. Census Bureau, A Compass for Understand-

ing and Using American Community Service Da-

homes for juveniles, and residential treatment centers for

juveniles. Non-institutional group quarters: Includes facili-

ties that are not classified as institutional group quarters,

such as college/university housing, group homes intended

for adult, residential treatment facilities for adults, work-

ers’ group living quarters and Job Corps centers, and reli-

gious group quarters.” Census Bureau, Frequently Asked

Questions, Can you tell me more about group quarters (GQ)

or group housing facilities in the American Community Sur-

vey (ACS)?, online at https://ask.census.gov/

faq.php?id=5000&faqId=1681.

ta: What Congress Needs to Know 2 (2008) (Bu-

reau Compass for Congress).°

The Bureau compiles running 1. 3-, and 5-

year summaries of data collected by the ACS and

publishes them on its American FactFinder web-

site..° ACS Design and Methodology at 182-97

(detailing preparation and dissemination of data).

Its sampling methods capture representative and

statistically valid data:

The ACS is . . . representative geograph-

ically, providing statistically valid infor-

mation for states, counties, and other large

and small areas, such as cities, townships,

and villages, congressional and state legis-

lative districts, American Indian and Alas-

ka Native areas and Hawaiian home lands,

zip code tabulation areas, and school dis-

tricts. The ACS is also representative of

many small distinct populations, for exam-

ple, reporting 2009-2013 estimates of per

capita income by race and Hispanic origin

for Crenshaw County, Alabama (2014 es-

timated population: 13,977).

Value of the ACS at 7 (emphasis omitted).

The Bureau refers to the ACS as a “revolution

in data collection” that is now “the cornerstone of

[its] effort to keep pace with the nation’s ever-

increasing demands for timely and relevant data

9 Online at https://www.census.gov/content/dam/Census/

library/publications/2008/acs/ACSCongressHandbook.pdf.

1© The Census Bureau’s American FactFinder is online,

accessible at http://factfinder.census.gov/faces/nav/)jsf/pages/

index.xhtm).

10

about population and housing characteristics.”

ACS Design and Methodology at 1.

B. The Federal Government Relies On

ACS Data To Administer Federal

Programs.

Congress now allocates federal funding among

beneficiaries in a wide variety of programs based

on ACS data. The Congressional Research Service

recently estimated that

ACS data .. . are used to distribute more

than $450 billion a year in funding. Thus,

the timeliness and quality of ACS data are

important for many reasons, but especially

to promote the equitable allocation of

scarce public resources.

ACS Development and Implementation at 1. See,

e.g., 42 U.S.C. § 1395w-4(e)(1)(H)(v)dD) (relying

on ACS for rate-setting adjustments for physician

reimbursement under Medicare); 20 U.S.C. § 6821

(funding allocation for education of immigrant

children and children with limited English profi-

ciency).

The federal government uses ACS data in the

course of implementing multiple programs and

policies:

The questions on the ACS supply the raw

data needed for a range of programs affect-

ing education, veterans, employment, hous-

ing and community development, public

hea'th care, commuting, services for the el-

derly and disabled, and assistance pro-

grams for low-income families and chil-

dren.

11

Census Bureau Compass for Congress at 4; see al-

so Value of the ACS at 14-25 (elaborating on fed-

eral uses of ACS data).!! The Commerce Depart-

ment reports that 13 different cabinet-level agen-

cies use ACS data, as do the Board of Governors

of the Federal Reserve, the Social Security Ad-

ministration, the Federal Communications Com-

mission, and the National Science Foundation.

Value of the ACS at 19.

Given these wide-ranging uses of ACS data,

the Commerce Department’s Under Secretary for

Economic Affairs recently observed that “[t]he

ACS is truly a unique, national treasure, produc-

ing a wealth of data on which our country relies to

make important decisions.” Mark Doms, The

American Community Survey: Best Quality Data

with the Least Public Burden (June 30, 2014)

(noting also that the “value of ACS is immense”

owing to the “fact that the ACS captures so much

information so comprehensively”). !2

11 The Bureau submitted a report to Congress before the

2010 Census detailing federal legislative and program use

for each subject and question included in the census and

ACS, and it maintains an online compilation detailing how

the federal government uses the ACS data, sorted by each

question from the survey. U.S. Census Bureau, Subjects

Planned for the 2010 Census and American Community

Survey: Federal Legislative and Program Uses (2008); U.S.

Census Bureau, American Community Survey, Questions on

the Form and Why We Ask, http://www.census.gov/acs/

www/about/why-we-ask-each-question/.

12 Online at http://)www.commerce.gov/news/blog/201 4/06/

american-community-survey-best-quality-data-least-public-

burden.

12

The conclusion that States and local govern-

ments can reliably use ACS data to distribute vot-

ing power equitably among their citizens is bol-

stered by the fact that the federal government al-

ready uses ACS data to distribute equitably a

wide array of benefits and to manage federal pro-

grams.

Il. The Bureau Calculates CVAP From

ACS Data And Publishes Annual Up-

dates In A Readily Accessible Format.

The ACS data most relevant to this case are

the Bureau’s published data tables that furnish

compilations of citizen voting-age population

(CVAP) data.'® The Bureau publishes this data

for all States, counties, cities and other Census

“places,” and, at the smallest level, Census block

groups.'* A block group is a cluster of census

blocks that contains between 600 and 3,000 peo-

ple. Value of the ACS at 25.15

18 The citizenship data is specifically requested by the

ACS, which asks: “Is this person a citizen of the United

States?” U.S. Dep’t of Commerce, The American Community

Survey 8 (2015 Informational Copy), online at

http://www2.census.gov/programs-surveys/acs/methodology/

questionnaires/2015/quest15.pdf.

14 Online at _http://www.census.gov/programs-surveys/

acs/geography-acs/concepts-definitions. html.

15 A block “is the smallest geographic entity for which the

Census Bureau tabulates decennial census data. Many

blocks correspond to individual city blocks bounded by

streets, but blocks— especially in rural areas—-may include

many square miles and may have some boundaries that are

not streets.” ACS Development and Implementation at 10

n.63.

13

The Bureau publishes this data online through

its American FactFinder website. These data en-

able demographers, legislators, or any interested

person to calculate a jurisdiction’s CVAP with

relative ease by selecting the relevant geography

and data from Table B05003.'®

Consider the following example for Denton

County, Texas. The calculated CVAP for the coun-

ty is 447,100, computed as follows from Table

B05003:

1. Add the numbers for “Male: 18 years and

over” and “Female: 18 years and over,” to get

the total voting-age population:

243,096 + 258,357 = 501,453

2. Subtract from the total voting-age popula-

tion the numbers for non-citizens (“Male: 18

years and over: Not a U.S. citizen” and “Fe-

male: 18 years and over: Not a U.S. citizen”):

501,453 — 27,358 — 26,995 = 447,100

This calculation can be performed using Table

B05003 for any particular state, county, city, cen-

sus tract, census block group, or other ACS level

of geography. Using the margin of error shown for

each row of data, one can calculate the corre-

‘6 Table BO5003, from which the tables for all ACS geog-

raphies can be accessed, is online at

http://factfir.der.census.gov/faces/tableservices/jsf/pages/pro

ductview.xhtm]?pid=ACS_13_5YR_B05003&prodType=tab)

e (“Sex By Age By Nativity And Citizenship Status”).

14

sponding margin of error for the calculated CVAP

of 447,100.17

The Bureau also furnishes the “Citizen Voting

Age Population (CVAP) Special Tabulation” of

ACS data prepared for the U.S. Department of

Justice for the purpose of redistricting. The Spe-

cial Tabulation provides CVAP data from the

ACS’s 5-year estimates, updated annually (most

recently for 2009-2013).'8 The Bureau explains:

“States continue to use the ACS to analyze char-

acteristics of the districts established in the redis-

tricting process. The citizenship by voting age and

race and ethnicity custom tabulation (CVAP) is

now released on an annual basis every February

per the request of several states and the Depart-

ment of Justice.” Catherine McCully, Designing

P.L. 94-171 Redistricting Data for the Year 2020

Census 22 (U.S. Census Bureau Dec. 2014).'9

In short, CVAP data are readily accessible to

State and local governments, as well as their de-

mographers and their citizens.

17 The methodology for calculating the margin of error for

an ACS estimate is explained in U.S. Census Bureau, A

Compass for Understanding and Using American Commu-

nity Service Data: What General Data Users Need to Know

10-11 & A-11-A-17 (2008).

18 Published online at https://www.census.gov/rdo/data/

voting age_population_by_citizenship_and_race_cvap.html.

18 QOnline at http://www.census.gov/content/dam/Census/

library/publications/201 4/rdo/p194-171.pdf.

15

Ill. CVAP Data Are Routinely Used To

Prove And Remediate Inequalities In

Voting.

Assertions that ACS CVAP data are not suffi-

ciently reliable to use in connection with redis-

tricting are without merit and contrary to deci-

sions of this Court and the courts of appeal, as

well as the practices of States, local jurisdictions,

and the Justice Department.

A. The Judiciary Has Determined

That CVAP Data Are Necessary In

Section 2 Claims, And State And

Local Governments Rely On Them

When Redistricting.

Section 2 of the Voting Rights Act prohibits

any “standard, practice, or procedure” that “re-

sults in a denial or abridgement of the right of

any citizen of the United States to vote on account

of race or color.” 52 U.S.C. § 10301(a). The Court

has established three “necessary preconditions”

for an actionable vote-dilution claim under Sec-

tion 2 of the Voting Rights Act: (1) a minority

group must be “sufficiently large and geograph-

ically compact to constitute a majority in a single-

member district,” (2) the minority group must be

“politically cohesive,” and (3) the majority must

vote “sufficiently as a bloc to enable it .. . usually

to defeat the minority’s preferred candidate.”

Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).

This Court’s recent Section 2 cases have ac-

cepted CVAP as the yardstick when assessing

minority voting-strength. Most notably, CVAP

was at the heart of a critical dispute over Texas’s

redistricting plans during the last apportionment

16

cycle. League of United Latin Am. Citizens v. Per-

ry, 548 U.S. 399, 423-25, 427-29, 436-42 (2006)

(opinion of Kennedy, J.) (LULAC);”° id. at 493-94,

502-10 (Roberts, C.J., concurring in part, concur-

ring in the judgment in part, and dissenting in

part) (relying on CVAP as relevant statistic in

compactness inquiry). The Court approved of the

litigants’ reliance on CVAP as a necessary consid-

eration under Gingles: “Latinos, to be sure, are a

bare majority of the voting-age population in new

District 23, but only in a hollow sense, for the

parties agree that the relevant numbers must in-

clude citizenship. This approach fits the language

of § 2 because only eligible voters affect a group's

opportunity to elect candidates.” LULAC, 548

U.S. at 429 (opinion of Kennedy, J.).21 The Court

also used CVAP to determine proportionality

when evaluating a minority group’s opportunity

to elect their candidate of choice. Jd. at 436 (“We

proceed now to the totality of the circumstances,

and first to the proportionality inquiry, comparing

the percentage of total districts that are Latino

opportunity districts with the Latino share of the

citizen voting-age population.”).

20 In fact, Justice Kennedy's opinion references the ACS

when referring to Latino CVAP in Texas. LULAC, 548 US.

at 438.

21 When seeking affirmance, Texas and the United States

(as amici) each relied on CVAP to argue that the challeng-

ers failed to meet their burden under Section 2. State Ap-

pellees’ Br. at 93-95, LULAC v. Perry, 548 U.S. 399 (2006)

(Nos. 05-204, 05-254, 05-276, 05-439) (discussing CVAP

and Section 2 compliance); Br. for the United States as

Amicus Curiae Supporting Appellees at 24-30, LULAC uv.

Perry.

17

Likewise, in Bartlett v. Strickland, 556 U.S. 1

(2009), the Court and litigants relied on CVAP to

evaluate the first Gingles requirement.”2

Every Circuit Court to consider the issue has

concluded that CVAP is a necessary consideration

when evaluating the first Gingles requirement.

Romero v. City of Pomona, 883 F.2d 1418, 1426

(9th Cir. 1989) (“[E]ligible minority voter popula-

tion, rather than total minority population, is the

appropriate measure of geographical compact-

ness.”), overruled in part on other grounds by

Townsend v. Holman Consulting Corp., 914 F.2d

1136, 1141 (9th Cir. 1990); Negron v. City of Mi-

ami Beach, 113 F.3d 1563, 1569 (11th Cir. 1997)

(“[T]he proper statistic for deciding whether a mi-

nority group is sufficiently large and geograph-

ically compact is voting age population as refined

by citizenship.”); Campos v. City of Houston, 113

F.3d 544, 548 (5th Cir. 1997) (“[C]ourts evaluat-

22 656 U.S. at 12-15 (opinion of Kennedy, J.); see also id. at

26-28, 36-40 (Souter, J., dissenting). Although Justice Ken-

nedy’s opinion refers simply to “African-American, voting-

age population,” rather than citizen voting-age population,

the lower court’s decision and Justice Souter’'s dissent make

clear that the relevant metric in the case was CVAP. Pender

Cnty. v. Bartlett, 649 S.E.2d 364, 371-76 (N.C. 2007) (de-

scribing “the critical question on appeal” as “whether the

‘sufficiently large and geographically compact’ minority

population must constitute a numerical majority of citizens

of voting age in order to satisfy the first Gingles precondi-

tion.”); Bartlett, 556 U.S. at 27 (Souter, J., dissenting) (“In

the plurality's view, only a district with a minority popula-

tion making up 50% or more of the citizen voting age popu-

lation (CVAP) can provide a remedy to minority voters lack-

ing am opportunity ‘to elect representatives of their

choice.”™).

18

ing vote dilution claims under section 2 of the

Voting Rights Act must consider the citizen vot-

ing-age population of the group challenging the

electoral practice when determining whether the

minority group is sufficiently large and geograph-

ically compact to constitute a majority in a single-

member district.”); accord Barnett v. City of Chi-

cago, 1.11 F.3d 699, 704 (7th Cir. 1998) (“We think

that citizen voting-age population is the basis for

determining equality of voting power that best

comports with the policy of the statute.”).

In order to meet these Section 2 requirements,

States and local jurisdictions throughout the Na-

tion retain professionals like amici demographers

to draw, analyze, and adjust voting district

boundary lines to comply with Section 2—and

they universally rely on CVAP data to accomplish

this.“ After Bartlett, moreover, demographers use

CVAP to adjust boundary lines to ensure that dis-

tricts retain majority-minority status. Every frac-

tion of a percentage poimt is of intense interest to

the political players in this process; they trust

23. Amicus Dr. Morrisom moutinely relies upon CVAP to as-

sess Section 2 compliance when consulting for several juris-

dictions. For an exwmple of a city that established new vot-

ing district boundary lines ts comply with Section 2, see

https://www.scribd.com/doc/273405839/Morrison-Memo-

Waterbury-Aldermanic-2015-03-18 (Miarch 18, 2015 Memo-

randum of Peter A. Morrison to Waterbury, Connecticut,

Board of Alderman regairding the City of Waterbury 2015

Aldermanic Distrmcting Plan). For an example of demogra-

phers using CVAP to analyze and adjust small-jurisdiction

district lines in an effort to comply with Section 2, see Lap-

koff & Gobalet Demographic Research, Inc., Redistricting

Report to the Board of Trustees Hartnell Community College

District (Oct. 13, 2011), online at http://bit.ly/1DuwrD.

19

that CVAP is a reliable data source for this sensi-

tive work.

The Department of Justice likewise has relied

on CVAP when bringing Section 2 enforcement

actions. E.g., Complaint §| 12, United States uv.

Sch. Bd. of Osceola Cnty., No. 6:08-cv-00582-GKS-

DAB (M.D. Fla. Apr. 16, 2008) (“The Hispanic

population of the county is sufficiently numerous

and geographically compact that a properly ap-

portioned single-member district plan for electing

the School Board can be drawn in which Hispanic

persons would constitute a majority of the citizen

voting-age population in one out of five dis-

tricts.”); Complaint 4 8, United States v. Town of

Lake Park, Fla., No. 09-cv-80507-KAM (S.D. Fla.

Mar. 31, 2009); Complaint 4 8, United States v.

Village of Port Chester, No. 06-civ-15173

(S.D.N.Y. Dec. 15, 2006).

Further examples abound. California’s inde-

pendent redistricting commission relied on ACS’s

CVAP data to assure that its final maps met the

requirements of Section 2 of the Voting Rights

Act. State of California Citizens Redistricting

Commission, Final Report On 2011 Redistricting

15 & n.3 (Aug. 15, 2011) (explaining reliance on

ACS and CVAP data); see also id. at 17-19 (dis-

cussing Section 2 compliance). Texas did so in

constructing and defending its state legislative

boundaries during this redistricting cycle.”

24 The Texas Legislative Council published a research

guide for using CVAP in connection with redistricting, along

with CVAP data for each district in each set of maps. Texas

Legis. Council, Estimating Citizenship Voting Age Popula-

tion Data (CVAP), Addendum to Data for 2011 Redistricting

20

In short, CVAP is now an indispensable fea-

ture in voting rights litigation under Section 2.

B. CVAP Was A Key In Measuring

Compliance With Section 5 Of The

Voting Rights Act.

Until this Court struck down Section 4(b) of

the Voting Rights Act in Shelby County v. Holder,

570 U.S. , 133 S. Ct. 2612 (2013), a staple of

Section 5 preclearance work involved analyzing

retrogression by referencing CVAP data. Indeed,

the Justice Department itself routinely consulted

CVAP data in conducting preclearance reviews

and in pursuing Section 5 enforcement.25 See U.S.

Comm’n on Civil Rights, Redistricting and the

2010 Census: Enforcing Section 5 of the Voting

Rights Act 54-55 (Sept. 2012) (describing the

DOJ’s “proportional retrogression” enforcement

standard, which “assess[es] the gap between the

actual number of minority ability districts and

in Texas (March 2013); Michael Li, Updated demographic

data for Texas legislative & congressional maps, Texas Re-

districting & Election Law, http://txredistricting.org/

post/78929777903/updated-demographic-data-for-texas-

legislative (Mar. 8, 2014).

25 Consideration of CVAP is necessary to gauge the true

effect of a proposed redistricting plan. “[T}o measure the

‘real’ electora) prospects of affected minority groups [in Sec-

tion 5 retrogression analysis}, as opposed to apparent ones,

the Justice Department, and the jurisdictions themselves,

often needed to look at Citizen Voting Age Population

(CVAP), voter registration or Statement of Vote data.”

Bruce E. Cain & Karin Mac Donald, Voting Rights Act En-

forcement: Navigating Between High and Low Expectations,

in The Future of the Voting Rights Act 133 (David L. Ep-

stein et al., eds., 2006).

21

the number of districts that would be roughly

proportional to the minority share of the citizen

voting age population”).

For example, the Arizona Independent Redis-

tricting Commission relied on CVAP to assess

Hispanic voting strength when seeking Section 5

preclearance from the Department of Justice for

its proposed legislative redistricting plan. Arizona

Independent Redistricting Commission, United

States Dep't of Justice Submission Under Section

5 of Voting Rights Act, State of Arizona Legisla-

tive Redistricting Plan 37 & n.3 (Feb. 28, 2012)

(detailing commission’s reliance on ACS’s CVAP

data to draw proposed districts); see generally id.

at 84-133 (relying on CVAP when evaluating the

proposed plan’s effect on minority voters’ ability

to elect candidates of their choice).

In a similar vein, CVAP was widely used in

earlier voting-rights litigation related to the same

plans that are at issue in this case. See Texas v.

United States, 887 F.Supp.2d 133 (D. D.C. 2012),

vacated and remanded, Texas v. United States,

133 S. Ct. 2885 (2013). The District Court ana-

lyzed each challenged district by comparing His-

panic CVAP in the existing (or “benchmark”) plan

against Texas's proposed plan to determine

whether the new plan ran afoul of Section 5’s

prohibition on retrogression. 887 F.Supp.2d at

153-56 (Congressional plan); 162-63 (State Senate

plan); 167-177 (State House plan).

22

C. Congress Relied On CVAP Data To

Protect Minority Voting Rights In

Section 203 Of The VRA.

Demographers, the courts, State and local

governments, and the Justice Department are not

alone in their reliance on CVAP. Congress explic-

itly relied on CVAP data to protect minority vot-

ing rights. Section 203 of the Voting Rights Act,

52 U.S.C. § 10503, prohibits states and political

subdivisions from providing English-only voting

materials if a threshold percentage of citizens

have limited proficiency in English. To determine

whether a State or political subdivision is subject

to Section 203’s requirements, the statute defines

a “covered State or political subdivision” “based

on the 2010 American Community Survey census

data and subsequent American Community Sur-

vey data in 5-year increments, or comparable cen-

sus data.” Id., subd. (b)(2)(A). Two of these calcu-

lations must expressly consider “the citizens of

voting age” as calculated by the ACS. /d., subds.

(b)(2)(A)G)M) and (ID.

This mandate, Congress declared, is an issue

of constitutional magnitude:

The Congress declares that, in order to en-

force the guarantees of the fourteenth and

fifteenth amendments to the United States

Constitution, it is necessary to eliminate

such discrimination by prohibiting these

practices [that exclude citizens of language

minorities from participation in the elec-

toral process], and by prescribing other

remedial devices.

Id., subd. (a).

23

All of this begs the question: If everyone

agrees that CVAP is valid and sufficiently reliable

for the various purposes outlined above, how

could it be insufficiently valid and reliable for

one-person, one-vote claims, especially since the

Court has already instructed that exact precision

is not required to satisfy the Fourteenth Amend-

ment? See Reynolds, 377 U.S. at 578-79; see also

Section V, infra. The answer: CVAP data are val-

id and reliable. Where necessary, they can be

used to subdivide, with a known degree of relia-

bility, almost any populated territory into dis-

tricts populated by substantially equal numbers

of voting-age citizens.

IV. Demographers Can Use Straightfor-

ward Techniques To Construct State

And Local Voting Districts Of Substan-

tially Equal CVAP.

The Bureau’s five-year CVAP data may be—

and have been—used to form voting districts pop-

ulated by approximately equal numbers of voting-

age citizens. While absolute precision is not and

has never been the standard for state and local

redistricting and is unattainable under any sys-

tem in any event, see Reynolds, 377 U.S. at 577-

79, ACS data more than suffices as the raw mate-

rial for building districts of “substantially equal”

numbers of eligible voters.

When it comes to forming state legislative dis-

tricts, as in this case, the exercise is particularly

straightforward. One such approach would entail

these steps:

Step 1: Obtain five-year ACS CVAP data for

the jurisdiction and divide the figure by the num-

24

ber of districts to obtain the “ideal” CVAP for each

district.26 See Section II supra (explaining CVAP

computation).

Step 2: Obtain five-year ACS CVAP data at

the census block group level using ACS Table

B05003.

Step 3: Aggregate contiguous block groups to

form the desired number of voting districts popu-

lated by approximately equal numbers of voting-

age citizens. (A CVAP calculation for a particular

district is referred to as a “period estimate.”).

The process of building districts with CVAP

data is precisely the same as building districts

based on raw population data—the only difference

is the data input. And, as with redistricting based

on total population, the ease of equalizing period

estimates among districts depends mainly on the

number of additional factors to be considered

(such as total population, compactness, and re-

spect for existing administrative geography).

Accordingly, demographers can build districts

based on CVAP with standard geographic infor-

mation system (GIS) software. The software al-

lows a user to combine contiguous units of census

geography (e.g., block groups, census tracts, cities)

into a successively more populous area. As addi-

tional units are added or removed, the CVAP es-

timate for the newly defined aggregate automati-

cally is revised up or down with the click of a but-

ton, and thereby accounted for exactly. By rear-

ranging units of geography among adjacent ag-

26 This calculation can also be made from the aggregation

of CVAP in the block groups within the jurisdiction (Step 2).

25

gregates of territory, a demographer can gradual-

ly devise a set of voting districts populated by ap-

proximately equal numbers of voting-age citizens.

Step 4: Calculate the margin of error for each

voting district. This calculation can be performed

using the Table B05003 data published for each

specific piece of geography that comprises the dis-

trict: each block group, census tract, city, and

county. The margin of error shown for each row

furnishes the necessary basis for further calcula-

tions to derive the margin of error for each aggre-

gate CVAP population that comprises each dis-

trict.

Following these steps, a demographer can con-

struct a 31-district Texas State Senate election

plan in which the deviation from the equal-CVAP

ideal (DD is sufficiently small that, when com-

bined with the margin of error, the plan’s actual

DI is certainly well below 10%.27 Were such a

plan built with the sole aim of minimizing the

plan’s overall CVAP deviation from ideal, that DI

could be reduced to essentially zero. By contrast,

the CVAP deviations from ideal in the Texas Plan

27 The Court has recognized that redistricting based on

the Census enumeration data involves inherent uncertainty

as well. See infra, Section V. When considering CVAP-based

districts, the statistical reality of a margin of error could

(but need not) factor into the overall variation from ideal

CVAP. That is, one could regard a CVAP “period estimate”

as the relevant metric, disregarding its margin of error, or

the margin of error could be added to the period estimates’

DI to obtain the maximum possible DI.

26

S172 exceeded 45%. Appellants’ Brief 9 (Table

1).28

The four-step process described above assumes

that districts have been assembled without split-

ting block groups. And, for purposes of forming

state legislative districts, such splitting will rare-

ly be necessary.

In other situations, particularly when forming

election districts at small geographic scales, it

may be preferable or necessary to include some

portions of certain census block groups. Examples

where such splitting may be needed include divi-

sion of small cities into districts where the admin-

istrative geography of a city does not conform to

the Census statistical geography that contains it.

Demographers can use commonly accepted

practices in such cases to subdivide ACS data into

the smallest unit of Census statistical geography

(the census block), then re-aggregate those rela-

tively few blocks into the large districts compris-

ing a redistricting plan for virtually any form of

28 [It should also be noted that, in the Section 2 decisions

described above involving CVAP-based calculations of mi-

nority voter strength, the courts’ acceptance of CVAP did

not turn on a particular margin of error. Indeed, expert cal-

culations of minority CVAP concentrations are often accept-

ed by courts based on a determination that the finding is

more likely than not, rather than a 90% or 95% level of con-

fidence. Nevertheless, amici acknowledge the reality that,

because the ACS is survey-based, assembling districts

based on CVAP involves a margin of error.

27

administrative geography.” At that point, the

demographer would pick up at step 3 above.

In sum, demographers can use CVAP data and

commonly accepted techniques to draw election

districts of substantially equal numbers of eligible

voters at nearly any geographic scale.

V. Redistricting Based On Survey Data

Fits Comfortably Within The Court’s

Decisions Recognizing That Redis-

tricting Is Not A Precise Mathematical

Exercise.

The Court has stressed that “substantial

equality” is the rule when establishing state and

local districts “so that the vote of any citizen is

approximately equal in weight to that of any oth-

er citizen in the State.” Reynolds, 377 U.S. at 579.

As Reynolds stressed, “it is a practical impossibil-

ity to arrange legislative districts so that each one

has an identical number of residents, or citizens,

or voters. Mathematical exactness or precision is

hardly a workable constitutional requirement.”

377 U.S. at 577.

28 One such common technique involv 2s “raking” the data.

Raking is the proportional redistribution ofa set of num-

bers to a different total. This is an accepted demographic

“best practice” the Census Bureau uses throughout its popu-

lation estimates program. U.S. Census Bureau, Methodolo-

gy for the United States Population Estimates: Vintage 2014

15 (2014), online’ at _ http://www.census.gov/popest/

methodology/2014-natstcopr-meth.pdf (“The method in-

volves iteratively controlling estimated values to the larger

geography’s characteristics and the smaller geography’s to-

tal estimates.”).

28

Moreover, this Court has long recognized that

the Census itself is inherently imprecise:

[Census] figures may be as accurate as

such immense undertakings can be, but

they are inherently less than absolutely ac-

curate. Those who know about such things

recognize this fact, and, unless they are to

be wholly ignored, it makes little sense to

conclude from relatively minor ‘census

population’ variations among legislative

districts that any person’s vote is being

substantially diluted. The ‘population’ of a

legislative district is just not that knowable

for such refined judgments.

Gaffney v. Cummings, 412 U.S. 735, 745-46

(1973).

Gaffney explained that “[a] census by its na-

ture can never be an exact count of a nation. This

is especially true of the United States... . Thus

an error of 1 or 2 percent in the count of the total

population is to be expected; professionally, it is

regarded as an ‘acceptable’ error.” 412 U.S. at 745

n.10 (quoting H. Alterman, Counting People: The

Census in History 262 (1969) (further noting that

the Bureau “estimate[d] that the 1970 census had

an under-coverage rate of 2.5%, or about

5,300,000 people”)). Rejecting a claim that max-

% ~=6Likewise, the Court has recognized the error inherent in

relying on decennial figures to apportion for the following

ten-year period. “States operate under the legal fiction that

their plans are constitutionally apportioned throughout the

decade, a presumption that is necessary to avoid constant

redistricting, with accompanying costs and instability.”

29

imum deviations of 7.83% and 1.81% in Connecti-

cut’s legislative districts violated Reynolds’ one-

person, one-vote guarantee, the Court concluded

that such “minor deviations” do not even require

justification. Id. at 745; see also Swann v. Adams,

385 U.S. 440, 444 (1967) (“De minimis deviations

are unavoidable”).

Since Reynolds, this Court has recognized that

more significant deviations from population

equality are appropriate if they are “based on le-

gitimate considerations incident to the effectua-

tion of a rational state policy.” 377 U.S. at 579.

See, e.g., Mahan v. Howell, 410 U.S. 315, 324-35

(1973) (accepting 16% deviation from population

equality for districts drawn to keep intact existing

political boundaries, and reaffirming Reynolds’

holding that “the Equal Protection Clause re-

quires that a State make an honest and good faith

effort to construct districts, in both houses of its

legislature, as nearly of equal population as is

practicable.”); Connor v. Finch, 431 U.S. 407, 418-

19 (1977) (rejecting 16.5% and 19.3% deviations

because the state failed to provide a sufficient jus-

tification for the population disparity).

LULAC, 548 U.S. at 421 (opinion of Kennedy, J.) (citing

Georgia v. Ashcroft, 539 U.S. 461, 488 n.2 (2003) (“[BJefore

the new census, States operate under the legal fiction that

even 10 years later, the plans are constitutionally appor-

tioned.”), and Reynolds, 377 U.S. at 583 (“[U)ndoubtedly re-

apportioning no more frequently than every 10 years leads

to some imbalance in the population of districts toward the

end of the decennial period and also to the development of

resistance to change on the part of some incumbent legisla-

tors.”)).

30

Given the impossibility of a perfect count and

States’ ability to consider factors other than just

population in non-congressional redistricting, the

Court has adopted a constitutional “safe harbor”

within which state and local governments need

not justify district-to-district population dispari-

ties of less than 10%. Brown v. Thompson, 462

U.S. 835, 842 (1983) (relying on Gaffney, 412 U.S.

at 745); see also Voinovich v. Quilter, 507 U.S.

146, 160-62 (1993); Nicholas Stephanopoulos &

Eric McGhee, Partisan Gerrymandering & the Ef-

ficiency Gap, 82 U. Chi. L. Rev. 831, 886 (2015)

(“The Court [has] concluded that population devi-

ations above ten percent in state plans must be

justified [by legitimate policies that necessitate

the inequality]. But deviations below ten percent

in state plans are presumptively valid unless they

result from efforts to disadvantage a political or

racial group.”) (emphasis in original).

As demonstrated above, readily available

CVAP data enable demographers to construct

election districts and calculate deviations from

ideal. These calculations involve known margins

of error that establish the maximum possible de-

viations from ideal. In short, CVAP data are suffi-

ciently valid and reliable to create districts that

satisfy the rule of “substantial equality” under

Reynolds.

31

CONCLUSION

Amici support appellants and agree it is un-

just for state and local governments to construct

districts of grossly disproportionate voting

strength, particularly when they have reliable da-

ta at their fingertips to reduce those imbalances.

State and local jurisdictions throughout the Na-

tion already hire demographers to analyze their

districts’ compliance with the Voting Rights Act

based on CVAP data. These jurisdictions can use

that same data to comply with the one-person,

one-vote principle.

Respectfully submitted,

C. DEAN MCGRATH, JR. BRADLEY A. BENBROOK

McGrath & Associates Counsel of Record

1025 Thomas Jefferson St, NW STEPHEN M. DUVERNAY

Ste. 110G Benbrook Law Group, PC

Washington, D.C. 20007 400 Capitol Mall, Ste. 1610

(202) 295-2304 Sacramento, CA 95814

(916) 447-4900

brad@benbrooklawgroup.com

August 2015 Counsel for Amici Curiae