# Reply Brief — Harris v. Ariz. Indenpendent Redistricting Comm'n, 135 S. Ct. 2926 (2015) (No. 14-232)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2015

## Text

No. 14-232

IN THE
Supreme Court of the United States

WESLEY W. HARRIS, et al.,
Appellants,

v.

ARIZONA INDEPENDENT REDISTRICTING
COMMISSION, et al.,
Appellees.

On APPEAL FROM THE
Untrep Srates District Court or ARIZONA

—_
—

OPPOSITION TO MOTION TO
DISMISS OR AFFIRM

-———- — -

Mark F. (Tuor) Hearne, II

STEPHEN G. LARSON

Counsel of Record Rosert C. O’BrIEN
SrepHEen S. Davis Steven A. HASKINS
ARENT Fox LLP ARENT Fox LLP
1717 K Street, NW 555 West Fifth Street,
Washington, D.C. 20036 48th Floor
(202) 857-6000 Los Angeles, CA 90013
thor@arentfox.com (213) 629-7400
Davip J. CANTELME MicnHaet T. Lisurp!
CANTELME & Brown PLC SNELL & WILMER LLP
3003 N. Central Avenue One Arizona Center
Suite 600 400 E. Van Buren Street
Phoenix, AZ 85012 Phoenix, AZ 85004
(602) 200-0104 (602) 382-6000

(Additional Counsel listed on signature page)

December 2, 2014

— oo

COUNSEL PRESS
(800) 274-8321 » (800) 359-6859

i

TABLE OF CONTENTS

Page
TABLE OF CONTENTS. i
TABLE OF CITED AUTHORITIES ii
INTRODUCTION a

I. Believing the Justice Department would
more likely preclear its redistricting scheme
does not justify unequal legislative districts
that violate the Equal! Protection Clause’s
guarantee of one-person, one-vote.

or

II. The unequal districts were not the result
of traditional, race-neutral districting
criteria. 8

Il. The Equal Protection Clause prohibits

deviations from population equality to
accomplish an illegitimate objective. .10

CONCLUSION 13

i

TABLE OF CITED AUTHORITIES

Page

CASES
Abrams v. Johnson,

521 U.S. 74 (1997). 5
Ariz. State Legislature v.

Ariz. Indep. Redistricting Comm'n,

No. 13-1314 (Order of October 2, 2014)... ..1,2, 18
Bush v. Vera,

517 U.S. 952 (1996) .10
Gaffney v. Cummings,

412 U.S. 735 (1973). | ae
Growe v. Emison,

507 U.S. 25 (1993). 13
Harper v. Va. Dep’t of Taxation,

509 U.S. 86 (1993). 6
Karcher v. Daggett,

462 U.S. 725 (1983). 9
Kirkpatrick v. Preisler,

394 U.S. 526 (1969). 9

Larios v. Coz,
300 F. Supp. 2d 1320 (N.D. Ga. 2004) 12

222

Cited Authorities

Page

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .5, 9, 11, 13
McCain v. Lybrand,

465 U.S. 236 (1984). 6
Miller v. Johnson,

515 U.S. 900 (1995). . 8, 8
Reynolds v. Sims,

377 U.S. 533 (1964). 1,4
Roman v. Sincock,

377 U.S. 695 (1964). a
Shelby County v. Holder,

133 S.Ct. 2612 (2013) passim
South Carolina v. Katzenbach,

383 U.S. 301 (1966). 7,8
United States v. Bd. of Comm’rs of Sheffield, Ala.,

435 U.S. 110 (1977). .6, 7
Vieth v. Jubelirer,

541 U.S. 267 (2004). 11,12
STATUTES AND OTHER AUTHORITIES
Voting Rights Act, §4 passim

Voting Rights Act, §5 passim

]

INTRODUCTION

This is the second of two cases arising from the
Arizona Independent Redistricting Commission’s (IRC)
redrawing Arizona’s congressional and state house
and senate districts. This Court has already noted
jurisdiction reaching the merits of the first case. Ariz.
State Legislature v. Ariz. Indep. Redistricting Comm'n,
No. 13-1314 (Order of October 2, 2014).

Arizona State Legislature asks whether it is
constitutional under the Elections Clause to divest
Arizona’s state legislature of any role apportioning
congressional districts and to vest redistricting in an
independent commission not accountable to the legislature.

This case asks whether the IRC’s reapportionment
of Arizona’s state legislature is constitutional when the
IRC drew legislative districts that violate this Court’s
one-person, one-vote principle in Reynolds v. Sims, 377
U.S. 533, 577 (1964), and Roman v. Sincock, 377 U.S. 695,
710 (1964). The IRC was capable of creating legislative
districts with equal population, as it did when it created
congressional districts with no population deviation.'
Yet, when it came to state legislative districts, the IRC
intentionally and systematically over-populated some
Republican districts and under-populated Democrat

1. See IRC website, 2012 congressional district population
data table at: (last visited November
29, 2014); see also id., 2001 congressional district population data
table at:
(last visited November 29, 2014).

2

districts. App. 209a. The effect of the IRC’s plan was to
inflate the influence of Democrat voters and dilute the
influence of Republican voters.

The district court found the IRC did this for partisan
advantage and because the IRC hoped the Justice
Department would more likely preclear this plan under
the Voting Rights Act. App. 36a, 107a.

Proponents of the measure creating the IRC claimed
divesting Arizona’s legislature from the redistricting
process and vesting sole reapportionment authority in the
IRC would remove partisan interests from the redistricting
process. See Op. Br. of Ariz. State Legislature, pp. 2-4 and
authorities cited therein.

This case demonstrates the exact opposite occurred.
By delegating redistricting to the IRC—a five-member
body without any political accountability—Arizona’s
legislative districts were intentionally drawn to achieve
partisan advantage for the Democrat party. Out of thirty
districts, “the 18 with population deviation greater than
+2% from ideal population correlate perfectly with
Democrat Party advantage.” App. 108a (emphasis added).
The total population deviation (a measure of how unequal
these district are) is close to 9%. This is an almost three
times greater deviation than Arizona's prior legislative
districts.’

2. See IRC website, adopted legislative redistricting plan
of April 12, 2004 showing total deviation of 3.12%, at: (last visited Nov. 29, 2014).

3

The IRC’s unequal legislative districts deny equal
weight to more than 70,000 Arizona citizens’ votes. App.
112a-113a; see also App. 209a; Jurisdictional Statement,
pp. 8-10. As the legislative map and charts in Judge Wake’s
dissent demonstrate, the IRC adopted an unequally-
apportioned scheme to redistrict Arizona’s legislature
for partisan benefit.

The IRC does not dispute the almost 9% population
deviation in these unequal districts. Instead, it responds by
claiming this is a “minor” or “insignificant” deviation from
the one-person, one-vote standard the IRC was required
to make to obtain Justice Department preclearance. The
IRC asks this Court to uphold its intentionally unequal
legislative districts even though this Court declared
the formula upon which preclearance is triggered to be
unconstitutional. See Shelby County v. Holder, 133 S.Ct.
2612 (2013).

The problem is that, even if true, and even if §5 of the
Voting Rights Act were still enforceable, obtaining Justice
Department preclearance does not justify violating the
one-person, one-vote constitutional mandate. See Miller v.
Johnson, 515 U.S. 900, 927 (1995). The Voting Rights Act
does not justify drawing systemically-unequal districts
as the IRC did. As Judge Wake noted, even if one once
believed obtaining Justice Department preclearance was
a legitimate reason to violate the one-person, one-vote
principle it no longer justified unequal districts after
Shelby County. App. 124a-128a.

Finally, the IRC asks this Court to uphold its unequal
legislative districts until the next reapportionment almost
a decade from now. Doing so means more than 70,000

4

Arizona citizens are denied an equally-weighted vote
for their state representative and state senator in every
election over the next decade. If the one-person, one-vote
principle means anything, it means we can do better than
what the IRC did. It means the IRC’s unequal legislative
districts, established for the purpose of achieving, at least
in part, a partisan advantage, are not constitutional and
must be redrawn to conform to the one-person, one-vote
principle.

The I1RC’s reapportionment systematically under-
populated Arizona’s majority-minority districts. The
ten most under-populated districts also have the highest
minority percentages. The IRC admits that this was
intentional. But neither racial, ethnic, nor partisan
motivations justify the IRC’s unequal districts.

Even if the IRC thought systematic inequality was
necessary to win the Justice Department’s favor, this does
not change the fundamental principle that “the Equal
Protection Clause requires that the seats in both houses
of a bicameral state legislature must be apportioned on
a population basis.” Reynolds, 377 U.S. at 568. And, the
IRC’s misguided effort to obtain preclearance by under-
populating minority districts unquestionably implicates
racial and ethnic concerns and, thereby, raises “serious
constitutional questions.”* League of United Latin Am.
Citizens v. Perry, 548 U.S. 399, 446 (2006); see also App.
3la—34a.

3. See Abrams v. Johnson, 521 U.S. 74, 91 (1997).

5

I. Believing the Justice Department would more likely
preclear its redistricting scheme does not justify
unequal legislative districts that violate the Equal
Protection Clause’s guarantee of one-person, one-
vote.

The IRC defends its unequal districts by arguing $5
required the IRC to draw these unequal districts. Mot. to
Affirm, pp. 21-22. This is wrong for three reasons. First,
Congress cannot compel by statute a state to violate the
Fourteenth Amendment guarantee of Equal Protection.
Thus, §5, even if it applies, does not compel unequal
districts. Second, §5 is no longer a justification because
this Court declared the coverage formula that brought
Arizona within §5 unconstitutional. Shelby County, 133
S.Ct. at 2631. Consequently the IRC’s desire to comply
with §5 is not a legitimate reason to violate the one-person,
one-vote principle. Third, preclearance did not require
the IRC to draw unequal districts. See Jurisdictional
Statement, p. 33-36, especially as to District 8.

The IRC says Shelby County is not relevant because
Shelby County was decided after it finished redistricting
Arizona’s state legislative districts. Mot. to Affirm, pp. 24-
27. The IRC argues Shelby County does not retroactively
negate its supposed reliance on §5. But see Harper v.
Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993) (“When
this Court applies a rule of federal law to the parties
before it, that rule is the controlling interpretation of
federal law and must be given full retroactive effect in
all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate
our announcement of the rule.”).

6

The IRC fails to appreciate that Shelby County changed
Arizona’s relationship with the federal government. After
Shelby County, Arizona was no longer subjected to §5’s
intrusive preclearance regime. This is precisely the
point Judge Wake makes in his dissent. App. 122a-128a.
The Voting Rights Act was created to address an
“extraordinary problem.” Shelby County, 133 S.Ct. at
2618; see also McCain v. Lybrand, 465 U.S. 236, 244 (1984)
(“The ‘preclearance’ requirement mandated by §5 of the
Act is perhaps the most stringent of these remedies, and
certainly the most extraordinary.”); United States v. Bd.
of Comm'rs of Sheffield, Ala., 435 U.S. 110, 141 (1977)
(“This so-called ‘preclearance’ requirement is one of the
most extraordinary remedial provisions in an Act known
for its broad remedies.”) (Powell, J., concurring).

Section 5’s preclearance requirement was “a drastic
departure from basic principles of federalism,” and
the now-unconstitutional §4 was an “equally dramatic
departure from the principle that all States enjoy equal
sovereignty.” Shelby County, 133 S.Ct. at 2618. These
legislative remedies were implemented under “exceptional!
conditions” equal to the “entrenched racial discrimination”
the Voting Rights Act was designed to combat. /d.
(quoting South Carolina v. Katzenbach, 383 U.S. 301, 309
(1966)). Thus, the Voting Rights Act’s “departures” from
federalism and state sovereignty were “justified” only
when necessary to break down invidious racial barriers
to minority voting. /d. at 2625.

Sections 4 and 5 are inextricably intertwined. Section
4’s formula was “the means of linking the exercise of the
unprecedented authority with the problem that warranted
it.” Id.; see also Bd. of Comm’rs, 435 U.S. at 141 (Powell,

-

J., concurring) (“Section 5 provides that whenever a State
or political subdivision, designated pursuant to §4, seeks
to change a voting practice, it must obtain clearance for
that change from either the United States District Court
for the District of Columbia or the Attorney Genera] of
the United States.”).

It is, thus, richly ironic the IRC invokes concepts
of state sovereignty and federalism in defense of its
unequal reapportionment scheme. Arizona suborning its
internal redistricting process to §5 of the Voting Rights
Act is inimical to federalism concerns. As the decisions
of this Court note, §5 of the Voting Rights Act infringes
the sovereignty of those states to which it applies. Such
an intrusion can only be countenanced on the basis of
invidious discrimination of the type once identified by §4’s
coverage formula. Because present conditions no longer
justify such an intrusion, the district court was wrong to
uphold the IRC’s unequal reapportionment on this basis.

As noted in our opening brief, the IRC manipulated
the population in districts 8, 24, and 26 for the supposed
purpose of obtaining §5 preclearance. But unequally
populating these districts was not “reasonably necessary”
to comply with §5 “under a constitutional reading and
application” of the Voting Rights Act. Jurisdictional
Statement, pp. 31-41. Even if done to comply with how
the IRC thought the Justice Department would apply the
Voting Rights Act, the reapportionment “still must ‘consist
with the letter and spirit of the constitution.” Miller, 515
U.S. at 927 (quoting Katzenbach, 383 U.S. at 326).

Here, the number of citizen voting-age Hispanics in
districts 8, 24, and 26 were such that the IRC’s claim that

8

these districts were so-called ability-to-elect districts is
simply not credible. See Jurisdictional Statement, pp. 35-
36. Nothing in the record supports the IRC’s contention
that systematic population disparities were “reasonably
necessary” to achieve $5 preclearance.

The IRC claims it would have been “forced to choose
between compromising its other goals or risking non-
compliance with federal law, all in service of avoiding
‘insignificant population variations.” Mot. to Affirm, p. 30
(quoting Gaffney v. Cummings, 412 U.S. 735, 748 (1973)).

This is a false choice. The IRC had alternative
districting plans that avoided any retrogression and
did so with equally (or very close to equally) populated
districts. These alternative plans also satisfied traditional
race-neutral redistricting criteria such as respecting

established geographic boundaries.

II. The unequal districts were not the result of
traditional, race-neutral districting criteria.

We agree the Equal Protection Clause affords some
degree of minor deviation from strict mathematical
equality when necessary to accommodate traditional
race-neutral redistricting criteria. States may draw
districts with minor population disparities so long as those
districts will not “deprive any person of fair and effective
representation in his state legislature.” Gaffney, 412 U.S.
at 749.

But that is not what happened here.

This Court described the following “unchallenged
premise” in redistricting cases: “[PJopulation variances

9

in legislative districts are tolerated only if they ‘are
unavoidable despite a good-faith effort to achieve absolute
equality, or for which justification is shown.” Perry, 548
U.S. at 421.‘ This Court’s jurisprudence has been quite
clear: When using racial and ethnic criteria to draw
legislative districts, the state cannot violate traditional
race-neutral redistricting criteria without triggering
strict scrutiny.

Justice O’Connor explained:

[S]o long as they do not subordinate traditional
districting criteria to the use of race for its own
sake or as a proxy, States may intentionally
create majority minority districts, and may
otherwise take race into consideration without
coming under strict scrutiny.

Bush v. Vera, 517 U.S. 952, 993 (1996)
(O’Connor, J., concurring) (emphasis added).

The IRC-drawn districts were not unequally drawn
to accommodate traditional redistricting criteria such as
compactness and geographic boundaries. Rather, these
unequa! districts were the intended result of a desire to
achieve a race-based, partisan outcome.

4. Citing Karcher v. Daggett, 462 U.S. 725, 730 (1983)
(quoting Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969)).

10

Ill. The Equal Protection Clause prohibits deviations
from population equality to accomplish an
illegitimate objective.

The district court offered only two justifications for
the IRC’s unequal districts: partisan advantage and a
perceived need to gain Justice Department preclearance.
We show above (and in the Jurisdictional Statement)
that it was not necessary, as a matter of fact or law, to
have unequal districts to obtain Justice Department
preclearance. This is so even if preclearance under §5 was
still a valid consideration after Shelby County.

We are left with the IRC’s desire to achieve partisan
advantage as the only remaining justification explaining
why it unequally apportioned Arizona’s legislative
districts. The district court correctly assumed partisan
advantage was not a legitimate objective. App. 6a, 62a,
63a n.10, 79a.

We recognize

In Davis v. Bandemer, the Court held that
an equal protection challenge to a political
gerrymander presents a justiciable case or
controversy, but there was disagreement over
what substantive standard to apply. That
disagreement persists. A plurality of the Court
in Vieth® would have held such challenges to be
nonjusticiable political questions, but a majority
declined to do so.

Perry, 548 U.S. at 413-14
(citations omitted).

5. Vieth v. Jubelirer, 541 U.S. 267, 306 (2004).

11

In Perry, this Court continued, holding, “[w]Je do not
revisit the justiciability holding but do proceed to examine
whether appellants’ claims offer the Court a manageable,
reliable measure of fairness for determining whether a
partisan gerrymander violates the Constitution.” /d. at
414.

The IRC claims this case is like Vieth. The IRC is
wrong. There are significant differences between this case
and cases like Vieth in which this Court has suggested a
healthy skepticism for leaping into the “political thicket.”

First, after Shelby County, partisan advantage is
the IRC’s only possible justification for adopting unequal
legislative districts. The district court did not find that any
traditional districting considerations—such as geographic
boundaries and compactness—required the IRC’s unequal
districts.

Second, the IRC intentionally drew unequal districts
with a population deviation of close to 9%. This is not
like Vieth, involving a challenge to districts with zero-
population deviation. Thus, in Vieth, voters went to
the polling booths with equally weighted votes. That did
not happen in Arizona, where the IRC’s redistricting
scheme allows voters in Hispanic-plurality districts to
wield significantly more political influence than those in
non-Hispanic-White-plurality districts. The IRC could
have—even while seeking partisan objectives—drawn
equally-populated districts. After all, the IRC drew
Arizona’s congressional districts with zero-population
deviation.

This case does not present the question of whether
partisan gerrymandered districts of equal population

12

are justiciable and constitutional. Rather, this case asks
whether it is constitutional to create wnequal districts for
the purpose of achieving a partisan advantage and not
to satisfy traditional, race-neutral districting objectives.

The Larios opinion, which this Court summarily
affirmed, noted the important difference between political
gerrymandering (when districts are otherwise equal) and
drawing unequal districts that violate the one-person,
one-vote. See Larios v. Cox, 300 F. Supp. 2d 1320, 1351-52
(N.D. Ga. 2004).

Individual Arizona voters who have been unequally
treated are bringing this challenge under the one-person,
one-vote principle and ask this Court to vindicate their
right to equal protection. This case is not a challenge by a
political party or group claiming the IRC’s redistricting
scheme makes it more difficult to elect representatives of
its choice in certain districts.

Finally, in Perry, Justice Kennedy noted the
Constitution “leaves with the States primary responsibility
for apportionment of their federal congressional...
districts.” 548 U.S. at 414 (quoting Growe v. Emison, 507
U.S. 25, 34 (1993)). But as the Arizona State Legislature
challenge demonstrates, Arizona’s legislative districts
were not drawn by the Arizona state legislature. They
were drawn by the IRC, a five-member commission
independent of the legislature. The constitutional
deference traditionally accorded a state legislature is not
applicable where (as here) the redistricting was not done
by the state legislature.

13
CONCLUSION

We ask this court to note jurisdiction, to reverse the
district court, and to remand this matter instructing
that Arizona’s state legislative districts be reapportioned
consistent with the one-person, one-vote standard.
Alternatively, we ask this Court to stay this appeal
pending its decision in Arizona State Legislature and, in
light of that decision, vacate the decision of the district
court and remand this case to the district court to
reconsider its decision in light of this Court’s decision in
Arizona State Legislature.

14

Respectfully submitted,

Mark F-. (Toor) HEARNE, II STEPHEN G. LARSON

Counsel of Record Rosert C. O'BRIEN
STEPHEN S. Davis Steven A. HASKINS
ARENT Fox LLP ARENT Fox LLP
1717 K Street, NW 555 West Fifth Street,
Washington, D.C. 20036 48th Floor
(202) 857-6000 Los Angeles, CA 90013
thor@arentfox.com (213) 629-7400
Davib J. CANTELME Ek. MARSHALL BRADEN

CANTELME & BRowN PLC BAKER HosTetTLeER LLP
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Suite 600 Suite 1100

Phoenix, AZ 85012 Washington, D.C. 20036

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MicHacw T. Lipurpi JASON TORCHINSKY

SNELL & WILMER LLP SHAWN SHEEHY

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Phoenix, Arizona 85004 Warrenton, VA 20186
(602) 382-6000 (540) 341-8808

Counsel of Appellants

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0346%3A03. Public record. Not legal advice.