Amicus Curiae Brief — Gill v. Whitford, 138 S. Ct. 52 (2017) (No. 16-1161)

FILED

APR 24 2017

BSG

No. 16-1161

In the Supreme Court of the Gnited States

BEVERLY R. GILL, ET AL., APPELLANTS

v.

WILLIAM WHITFORD, ET AL., APPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF FOR TiE STATES OF TEXAS, ARIZONA,

ARKANSAS, INDIANA, KANSAS, LOUISIANA,

MICHIGAN, MISSOURI, NEVADA, OKLAHOMA,

SOUTH CAROLINA, AND UTAH AS AMICI CURIAE

IN SUPPORT OF APPELLANTS

KEN PAXTON ScoTT A. KELLER

Attorney General of Texas Solicitor General

JEFFREY C. MATEER Counsst of Record

First Assistant MATTHEW H. FREDERICK

Attorney General Deputy Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott. keller@oag.texas.gov

(512) 936-1'700

[counsel for additional Amici listed at end of brief]

ee ee

TABLE OF CONTENTS

Page

I a eiemeeial III]

i scolcetlinidocianamicnnaiiiientat 1

cen esranenincieniecnbipampendensaniiinsiooetie 2

a ailincisrcedietanietnninipisintiicsicininiimtinisiamepnigiianeiitimaiatmemins 3

I. The District Court’s Opinion Warrants This

Court’s Review Because It Threatens Every

State’s Ability to Reapportion Legislative

ie iiestiennsiteitavnsuliiscisptaeltianiipiiiitsanduiaititaaanimeritamasmneneen 3

A. Partisan purpose is easy to prove when

the redistricting process involves partisan

actors and necessarily produces partisan

SEIT aia 620 et REDS Re ee 4

B. The district court’s indeterminate stan-

dard does not draw a clear line between

permissible and impermissible partisan

II Pasioskstiinsisiinsedtieisdislanambiiincbipdupiediideibeanenperncnes 8

Il. The District Court’s Partisan-Gerrymander-

ing Standard Rests on Unfounded Concep-

tions of Proportional Representation and

I icici sien seitichanenislaedieiiadisimmbesimmemenes 1]

A. The district court’s expectation that

single-member districts will result in

proportional representation is

TG niiichitnaneiieibdneniiuiibideniinintgnenietnceases 11

B. The district court’s analysis reflects an

expansion of vote-dilution claims from

(T)

i

individuals’ ability to elect to group-

based statewide political influence. ............ 14

Re AAAS SINE a AE PNAS cele SY Ne a 18

Page(s)

Cases:

Adarand Constructors, Inc. v. Pena, 515 U.S.

RCN ERE RE ec a 15

Anderson v. Celebrezze, 460 U.S. 780 (1983) ................ 17

Brown v. Thomson, 462 U.S. 835 (1983)................. 15, 16

Chapman ». Meier, 420 U.S. 1 (1975) ...........cccccccceceeseees 2

Common Cause v. Rucho, No. 16-cv-1026,

2017 WL 876307 (M.D.N.C. March 3, 2017)

EET ES RESO ee ee 8

Davis v. Bandemer, 478 U.S. 109 (1986)............. 5, 10, 12

Gaffney v. Cummings, 412 U.S. 735 (19738)............000. 2,4

Growe v. Emison, 507 U.S. 25 (1998) .............cccceccseeseneees 2

Harris v. Ariz. Indep. Redistricting Comm'n,

pT 8

Lujan v. Defenders of Wildlife, 504 U.S. 555

SES ERS URAC 2th 17

LULAC v. Perry, 548 U.S. 399 (2006)...............00.. 12, 14

Miller v. Johnson, 515 U.S. 900 (1995) .......... ee ceececeeeeeeeee 6

Reynolds v. Sims, 377 U.S. 533 (1964) ........cccccccceeeeeees 15

Shaw v. Hunt, 517 U.S. 899 (1996) ...............ccccccesseeeeenes 14

Shaw v. Reno, 509 U.S. 630 (1998) .2..... ccc. cce cece ceseeeeeee 7

ITI

Cases — Continued:

Vieth v. Jubelirer, 541 U.S. 267 (2004)................ 7,12,13

Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252 (1977) .........ccccssecceseesesseere 4,7

Other Authorities

Paul A. Diller, Reorienting Home Rule: Part

1—The Urban Disadvantage in National

and State Lawmaking, 77 La. L. Rev. 287

a ciniilaineuionn 13

In the Supreme Court of the Gnited States

No. 16-1161

BEVERLY R. GILL, ET AL., APPELLANTS

Vv.

WILLIAM WHITFORD, ET AL., APPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF FOR THE STATES OF TEXAS, ARIZONA,

ARKANSAS, INDIANA, KANSAS, LOUISIANA,

MICHIGAN, MISSOURI, NEVADA, OKLAHOMA,

SOUTH CAROLINA, AND UTAH AS AMICI CURIAE

IN SUPPORT OF APPELLANTS

INTEREST OF AMICI CURIAE'

Amici are the States of Texas, Arizona, Arkansas, In-

diana, Kansas, Louisiana, Michigan, Missouri, Nevada,

Oklahoma, South Carolina, and Utah. The States have a

vital interest in the rules that govern apportionment of

seats for state legislative bodies and the United States

House of Representatives. This Court has repeatedly

held that “reapportionment is primarily the duty and re-

sponsibility of the State through its legislature or other

' Counsel of record received timely notice of intent to file this

brief, as required by Rule 37.2(a).

(1)

2

body, rather than of a federal court.” Growe v. Emison,

507 U.S. 25, 34 (1993) (quoting Chapman v. Meier, 420

U.S. 1, 27 (1975)).

And the Court has recognized that reapportionment

by state legislatures is an inherently political task. See,

e.g., Gaffney v. Cummings, 412 U.S. 735, 749 (1973). It

has never held that a State violates the Constitution by

pursuing or achieving political goals through reappor-

tionment.

Yet in this case, the district court held that Wisconsin

violated the Constitution when it passed Act 43, the re-

apportionment plan for its Assembly and Senate, be-

cause that plan was purportedly a partisan gerrymander.

The district court’s decision invites openly partisan pol-

icy battles in the courtroom. This will expose every State

to litigation under a legal standard so indeterminate that

any party that loses in the statehouse has a fighting

chance of overriding that policy decision in the court-

house. The Constitution does not support, let alone com-

pel, this result. The district court’s decision therefore

warrants review by this Court.

SUMMARY OF ARGUMENT

This Court has repeatedly stated that legislative re-

apportionment is an inherently partisan task. And the

Court has made clear that partisan-gerrymandering

claims are not cognizable based on a measure of propor-

tional representation between the votes and seats ob-

tained by a political party.

Nevertheless, the split decision of the district court

here recognized a partisan-gerrymandering claim under

3

an amorphous test that could be used to threaten count-

less state legislative reapportionment plans. Partisan

purpose is inherent in the nature of legislative reappor-

tionment, and the district court’s indeterminate stand-

ard does not draw a predictable line between permissible

and impermissible partisan effects. Furthermore, the

district court’s analysis is predicated on an expectation

that single-member districts should produce propor-

tional representation—a concept this Court has ex-

pressly rejected multiple times. And the district court’s

reliance on vote-dilution cases fundamentally misunder-

stands the difference between those claims regarding in-

dividual rights versus the novel group-based right rec-

ognized here. The Court’s review is necessary to reject

the district court’s flawed analysis before it spreads to

other jurisdictions and interferes with the States’ funda-

mental political responsibilities.

ARGUMENT

I. The District Court’s Opinion Warrants This

Court’s Review Because It Threatens Every

State’s Ability to Reapportion Legislative Seats.

The district court majority held that a redistricting

plan violates the First Amendment and the Equal Pro-

tection Clause when it “(1) is intended to place a severe

impediment on the effectiveness of the votes of individual

citizens on the basis of their political affiliation, (2) has

that effect, and (3) cannot be justified on other, legiti-

mate legislative grounds.” J.S. App. 109-10a. That hold-

ing will be quite disruptive in practice. First, partisan

motivation will be easy to prove because, unlike race or

4

other presumptively impermissible criteria, political con-

siderations are unavoidable in legislative reapportion-

ment. Second, political impact is foreseeable in any ap-

portionment plan, but there is no clear standard to dis-

tinguish permissible from impermissible partisan ef-

fects. The district court’s indeterminate standard of lia-

bility warrants review by this Court because it threatens

to entangle every State in protracted, politically moti-

vated litigation.

A. Partisan purpose is easy to prove when the redis-

tricting process involves partisan actors and nec-

essarily produces partisan effects.

In an effort to provide structure to its intentional-dis-

crimination test, the majority purported to borrow the

framework for judging discriminatory purpose from ra-

cial-discrimination cases, J.S. App. 117a, including the

nonexhaustive list of factors identified in Arlington

Heights. J.S. App. 123-24a (quoting Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68

(1977)). The problem with this, of course, is that the

Court has repeatedly noted that partisan purpose is in-

herent in legislative reapportionment. So a finding of

partisan purpose says nothing about the constitutional-

ity of a reapportionment plan.

This Court has correctly noted that as long as redis-

tricting is carried out by partisan legislatures, partisan

intent will be easy to prove. Gaffney v. Cummings, for

instance, referred to “the impossible task of extirpating

politics from what are the essentially political processes

of the sovereign States.” 412 U.S. at 754. Similarly, in

5

Davis v. Bandemer, 478 U.S. 109, 129 (1986), the plural-

ity recognized that partisan intent is inherent in legisla-

tive redistricting: “As long as redistricting is done by a

legislature, it should not be very difficult to prove that

the likely political consequences of the reapportionment

were intended.”

Because some degree of partisanship is inherent in

legislative redistricting, the district court had to consider

“what kind of partisan intent offends the Constitution.”

J.S. App. 1lla. The district court’s answer to that ques-

tion sets an extremely low bar.

The hallmark of excessive partisanship, according to

the district court, is “an intent to entrench a political

party in power.” J.S. App. 117a. It did not define “en-

trenchment,” but it described the concept in terms that

could apply to any effort to secure an electoral ad-

vantage. According to the district court, “excessiveness”

or “extreme partisan gerrymanders” do not require any

particular distribution of legislative seats. A party with a

bare majority of safe seats could be sufficiently “locked-

in” to impose “representational harms” on adherents of

the other party. J.S. App. 116a.

The district court’s opinion illustrates how easy it will

be to establish discriminatory intent. It found that “one

purpose of Act 43 was to secure the Republican Party’s

control of the state legislature for the decennial period.”

J.S. App. 126a. One basis of this finding was the drafters’

consideration of partisan data to predict the outcome of

elections. J.S. App. 126-36a. The district court found im-

permissible partisan purpose because “from the outset

of the redistricting process, the drafters sought to un-

derstand the partisan effects of the maps they were

6

drawing.” J.S. App. 138a. It also relied on the drafters’

concern with “the durability of their plan,” that is,

whether the anticipated advantage would persist over

the life of the plan. J.S. App. 139a.’ Ultimately, this was

enough to prove “that one of the purposes of Act 43 was

to secure Republican control of the Assembly under any

likely future electoral scenario for the remainder of the

decade, in other words to entrench the Republican Party

in power.” J.S. App. 140a.

Under the district court’s test, any effort to secure a

marginal partisan advantage may qualify as prohibited

intentional discrimination. It dismissed the argument

that drafters “only wanted to improve their position in-

crementally,” reasoning that if that had been their pur-

pose, “they could have settled on one of the maps that

provided a pickup of a smaller number of Republican

seats.” J.S. App. 145a n.241. But under the majority’s

reasoning, the “pickup” of a smaller number of seats

would still support a finding of intent to “entrench”—it

would merely be a lesser degree of entrenchment.

The district court’s standard of discriminatory pur-

pose will effectively reverse the presumption of constitu-

tionality afforded to legislative enactments. See, e.g.,

Miller v. Johnson, 515 U.S. 900, 916 (1995) (noting “the

sensitive nature of redistricting and the presumption of

good faith that must be accorded legislative enact-

ments”). After all, “it rarely can ‘be said that a legislature

* This concern was proven, in part, by signs of optimism—one

drafter assured the Republican caucus that “(t]he maps we

pass will determine who’s here 10 years from now.” J.S. App.

136a.

7

or administrative body operating under a broad mandate

made a decision motivated by a single concern.” J.S.

App. 118-19a (quoting Arlington Heights, 429 U.S. at

265). This is particularly true in redistricting—legisla-

tures typically must consider, among other factors, “tra-

ditional districting principles such as compactness, con-

tiguity, and respect for political subdivisions.” J.S. App.

119a (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993)).

And since this Court has presumed that politics will fig-

ure in that mix, the fact of a legislatively enacted plan

will almost always suffice to make out a prima facie case

of discriminatory intent under the district court’s test.

The States will find no comfort in “a sensitive inquiry

into such circumstantial and direct evidence of intent as

may be available,” J.S. App. 123a (quoting Arlington

Heights, 429 U.S. at 266), since the circumstantial evi-

dence—and likely the direct evidence—will presumably

abound with indicators of political motive. See, e.g., Vieth

v. Jubelirer, 541 U.S. 267, 347-50 (2004) (Souter, J., dis-

senting) (“[UJnder a plan devised by a single major

party, proving intent should not be hard, . . . politicians

not being politically disinterested or characteristically

naive.”). Contrary to the district court’s suggestion,

court- or commission-drawn plans will not escape liabil-

ity if they have a partisan impact. The “components of

the analysis” under Arlington Heights can never “pre-

vent a finding of a constitutional violation,” J.S. App.

17la, because they are not necessary elements of proof;

they are merely “subjects of proper inquiry.” 429 U.S. at

268. Indeed, a recent case before this Court proves that

claims of partisan gerrymandering will not “stall,” J.S.

App. 171a, merely because a court or commission drew

8

the challenged plan. See Harris v. Ariz. Indep. Redis-

tricting Comm’n, 136 S. Ct. 1301, 1307 (2016) (rejecting

claim that deviations from absolute population equality

resulted from the redistricting commission’s “political

efforts to help the Democratic Party”).

B. The district court’s indeterminate standard does

not draw a clear line between permissible and im-

permissible partisan effects.

Just as any effort to favor one political party could

support a finding of discriminatory intent, any degree of

partisan advantage could lead to a finding of discrimina-

tory effect under the district court’s standard. The dis-

trict court did not adopt wholesale the plaintiffs’ pro-

posed “efficiency gap” statistical test, instead treating it

as corroborating evidence of a purported partisan gerry-

mander. J.S. App. 176a. But the court nevertheless cre-

ated an even more open-ended standard that would re-

sult in a finding of discriminatory effect whenever a

State’s redistricting plan would “place a severe impedi-

ment on the effectiveness of the votes of individual citi-

zens on the basis of their political affiliation.” J.S. App.

109-10a. The district court’s constitutional standard mer-

its this Court’s full review because it places every State

at risk of constitutional liability, as the district court’s

decision will be—and has been—relied on by other

courts in evaluating partisan-gerrymandering claims.

See Common Cause v. Rucho, No. 16-cv-1026, 2017 WL

876307 (M.D.N.C. March 3, 2017) (per curiam). This

guarantees that every State will face protracted litiga-

tion under a test that does not impose clear standards.

9

The plaintiffs’ proposed “efficiency gap” test for par-

tisan gerrymandering shows the extent of the threat to

the States. Plaintiffs’ “efficiency gap” test attempts to

measure the difference between the percentage of

statewide votes for legislative seats for a political party

compared to the actual percentage of seats held by that

party. J.S. App. 159-61la. The plaintiffs’ expert Dr. Jack-

man applied this efficiency-gap test to elections in 41

States over a 43-year period, finding impermissible par-

tisan discrimination whenever the first election produced

an efficiency gap greater than 7%.’ The appellants note

that this test would condemn approximately one third of

all plans considered. J.S. 14-15. Indeed, considering all

elections in the analysis, the plaintiffs’ test would have

found an impermissible partisan effect in at least one

plan in 36 States—including Alabama, Arkansas, Califor-

nia, Colorado, Delaware, Florida, Georgia, Hawaii, IIli-

nois, Indiana, Kansas, Kentucky, Massachusetts, Michi-

gan, Minnesota, Missouri, Mississippi, Montana, North

Carolina, New Mexico, Nevada, New York, Ohio, Okla-

homa, Pennsylvania, Rhode Island, South Carolina, Ten-

nessee, Texas, Utah, Virginia, Vermont, Washington,

Wisconsin, West Virginia, and Wyoming. See Jackman

Rpt. at 34. Confining the analysis to elections held in

8 See Simon Jackman, Assessing the Current Wisconsin State

Legislative Districting Plan at 20 (July 7, 2015), ECF No. 1-3

[hereinafter “Jackman Report”}. Dr. Jackman excluded 9

States—Arizona, Idaho, Louisiana, Maryland, Nebraska, New

Hampshire, New Jersey, North Dakota, and South Dakota—

from his analysis because they had “exceedingly high rates of

uncontested races” or because they used multi-member dis-

tricts, non-partisan elections, or a run-off system. /d.

10

2012 and 2014, Dr. Jackman found an efficiency gap

greater than 10% in Florida, Indiana, Kansas, Michigan,

Missouri, North Carolina, New York, Ohio, Rhode Island

Virginia, Wisconsin, and Wyoming. See id. at 73. In ad-

dition, Dr. Jackman found consistent partisan bias in

post-2010 redistricting plans in Alaska, Colorado, Geor-

gia, Maine, Minnesota, Oregon, Pennsylvania, and Ver-

mont. Jd.

The district court’s standard is even more open-

ended. Eschewing the plaintiffs’ efficiency-gap metric

and its 7% threshold, the district court found that Wis-

consin “burden([ed] the representational rights of Demo-

cratic voters in Wisconsin by impeding their ability to

translate their votes into legislative seats, not simply for

one election but throughout the life of Act 43.” J.S. App.

176-77a.

The logic of the district court’s opinion would permit

a finding of partisan gerrymandering based on any de-

gree of disproportionality between statewide votes and

legislative seats, provided only that the seats-to-votes

gap persisted over the life of the plan. A smaller number

of safer seats would arguably provide even stronger evi-

dence of a partisan effect. A narrower majority would al-

low a greater margin of safety, thereby increasing the

durability of the alleged gerrymander. See, e.g.,

Bandemer, 478 U.S. at 152 (O’Connor, J., concurring in

the judgment) (“[AJn overambitious gerrymander can

lead to disaster for the legislative majority: because it

has created more seats in which it hopes to win relatively

narrow victories, the same swing in overall voting

strength will tend to cost the legislative majority more

11

and more seats as the gerrymander becomes more ambi-

tious.”). As long as the legislature intended to create

some degree of electoral advantage—and it is difficult to

imagine how this could not be proven—liability would be

established. The potential for interference with State re-

districting efforts merits review by this Court.

II. The District Court’s Partisan-Gerrymandering

Standard Rests on Unfounded Conceptions of

Proportional Representation and Vote Dilution.

A. The district court’s expectation that single-mem-

ber districts will result in proportional represen-

tation is unfounded.

The majority based its partisan-gerrymandering test

on the notion that the proportion of statewide votes for a

major party’s candidates should match the proportion of

legislative seats won in single-member legislative dis-

tricts. As the district court put it, the plaintiffs’ proposed

test—the efficiency gap—“measures the magnitude of a

plan’s deviation from the relationship we would expect to

observe between votes and seats.” J.S. App. 169a. But

there is no reason to expect proportional representation

in a system based on single-member districts. More im-

portantly, there is no constitutional basis to compel the

States to achieve proportional partisan representation in

their legislatures.

The premise underlying the majority’s decision—

“the normative judgment that a party’s seats won must

be proportional to the party’s statewide vote totals,” J.S.

App. 273a (Griesbach, J., dissenting)—stands at odds

with the nature of single-district, winner-take-all elec-

tions. This conflict was apparent, and clearly noted, in

12

Bandemer, where the plurality explained that dispropor-

tionality “is inherent in winner-take-all, district-based

elections.” 478 U.S. at 130 (plurality opinion); id at 159

(O’Connor, J., concurring) (explaining that when “voters

cast votes for candidates in their districts . . . efforts to

determine party voting strength presuppose a norm that

does not exist—statewide elections for representatives

along party lines”).

The district court failed to locate a right to propor-

tional representation in the Constitution. That failure is

significant given this Court’s prior decisions. See, e.g.,

Vieth, 541 U.S. at 308 (Kennedy, J., concurring) (finding

“no authority” for the notion “that a majority of voters in

the Commonwealth should be able to elect a majority of

the Commonwealth’s congressional delegation”); id. at

358 (Breyer, J., dissenting) (explaining that systems de-

signed to produce more proportional representation

simply “reflect different conclusions about the proper

balance of different elements of a workable democratic

government”); LULAC v. Perry, 548 U.S. 399, 419 (2006)

(opinion of Kennedy, J.) (“(T]here is no constitutional re-

quirement of proportional representation, and equating

a party’s statewide share of the vote with its portion of

the congressional delegation is a rough measure at

best.”). The dissent below noted correctly that “the effi-

ciency gap—or any measure that simply compares

statewide votes to seats—is little more than an enshrine-

ment of a phantom constitutional right.” J.S. App. 235a

(Griesbach, J., dissenting).

The majority’s opinion also downplays the impact of

geographic clustering, where Democratic-leaning voters

tend to concentrate in high-density urban areas. This

13

well-documented phenomenon exists across the country,

with predictable effects on district-level elections. See,

e.g., Vieth, 541 U.S. at 290 (plurality opinion) (recogniz-

ing that “political groups that tend to cluster (as is the

case with Democratic voters in cities) would be system-

atically affected by what might be called a ‘natural’ pack-

ing effect”); Paul A. Diller, Reorienting Home Rule:

Part 1—The Urban Disadvantage in National and State

Lawmaking, 77 La. L. Rev. 287, 336 (2016) (“The same

overlap of residential demography and political prefer-

ence that skews the U.S. House in favor of Republicans

operates, perforce, at the state level because a vast ma-

jority use contiguous, single-member, winner-take-all

districts to elect legislators.”). The majority acknowl-

edged, and the plaintiffs conceded, that “Wisconsin’s po-

litical geography affords Republicans a modest natural

advantage in districting.” J.S. App. 200a. Indeed, the

plaintiffs’ demonstration plan, which was drawn to mini-

mize the efficiency gap, still showed an efficiency gap of

2.2% to 3.89% in favor of Republicans under their meas-

ure. J.S. App. 202a, 208a n.355.‘

The majority discounted this factor on the ground

that geography alone “cannot explain the burden that

Act 43 imposes on Democratic voters in Wisconsin.” J.S.

App. 217-18a. But other factors, such as larger numbers

of uncontested elections and variations in turnout, may

correlate with and magnify the effects of geographic

clustering. See J.S. App. 243a, 309-1la (Griesbach, J.,

‘To reach the 2.2% efficiency gap, the plaintiffs’ expert as-

sumed that there were no incumbents. Accounting for incum-

bency, the figure rose to 3.89%. J.S. App. 203a n.355.

14

dissenting). Without controlling for those factors, the

district court had no basis to assume that the responsi-

bility for Act 43’s partisan impact lay exclusively, or even

primarily, with its drafters.

B. The district court’s analysis reflects an expan-

sion of vote-dilution claims from individuals’

ability to elect to group-based statewide political

influence.

The opinion below also raises a substantial question

about the nature and source of vote-dilution claims. The

district court majority appeared to leverage constitu-

tional claims based on the rights of individual voters to

participate in the political process—the traditional focus

of vote-dilution claims—into a constitutional standard

based on the right of a group to achieve a certain meas-

ure of political success. That marks a significant depar-

ture from this Court’s jurisprudence.

The district court claimed that “one-person, one-vote

and vote-dilution cases provide the foundation for evalu-

ating claims of political gerrymandering.” J.S. App. 78a.

And it recognized that “(t]he gravamen of an equal pro-

tection claim is that a state has burdened artificially a

voter’s ballot so that it has less weight than another per-

son’s vote.” J.S. App. 100a. The right to cast an undiluted

vote belongs to each voter as an individual. LULAC v.

Perry, 548 U.S. at 437 (“[T he right to an undiluted vote

does not belong to the ‘minority as a group,’ but rather

to ‘its individual members.” (quoting Shaw v. Hunt, 517

U.S. 899, 917 (1996))); Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 227 (1995) (citing “the basic principle

15

that the Fifth and Fourteenth Amendments to the Con-

stitution protect persons, not groups”). The district court

did not explain, however, why or how the individual

plaintiffs’ votes had been diluted or assigned unequal

weight. It did not identify the particular Assembly dis-

tricts in which they live, nor did it consider whether they

were able to elect their preferred candidates of choice.

The district court looked past the typical elements of

vote-dilution because it treated the plaintiffs’ claims as

group-based claims, not claims based on individual

rights. The concern here, it explained, “is the effect of a

statewide districting map on the ability of Democrats to

translate their votes into seats. The harm is the result of

the entire map, not simply the configuration of a partic-

ular district.” J.S. App. 224-25a.

The district court’s willingness to recognize a group-

based right to a specific degree of political power is novel.

The district court’s attempt to locate that right in the

one-person, one-vote doctrine highlights the fundamen-

tal problem with its analysis: the absence of an identifia-

ble constitutional baseline. The majority argued that its

analysis of partisan effect “finds a constitutional ana-

logue in the malapportionment context.” J.S. App. 168a

n.299 (citing Brown v. Thomson, 462 U.S. 835, 842-43

(1983)). But in malapportionment cases, deviation from

population equality makes out a prima facie case of invid-

ious discrimination because the Constitution has been in-

terpreted to require substantially equal population in or-

der to ensure that each individual’s vote is measured

with the same weight. Reynolds v. Sims, 377 U.S. 533,

579 (1964) (“[T]he overriding objective must be substan-

tial equality of population among the various districts, so

16

that the vote of any citizen is approximately equal in

weight to that of any other citizen in the State.”). Equal

population is the constitutional baseline.° There is no

equivalent constitutional baseline for partisan fairness

or equal influence for political parties.

The district court attempted to sidestep this problem

by invoking “the ability of voters of a certain political

persuasion to form a legislative majority.” J.S. App.

106a. According to the majority below, when a group of

voters “has a diminished or even no opportunity to effect

a legislative majority,” each member of that group is “an

unequal participant in the decisions of the body politic.”

J.S. App. 107a.

But the notion that an individual voter suffers a con-

stitutional injury because a political party cannot form a

legislative majority is hardly self-evident. The district

court did not explain why injury to the party necessarily

inflicts an injury on the individual voter. It merely ar-

gued that the asserted injury was not a generalized

grievance because the harm was “shared by Democratic

voters in the State of Wisconsin.” J.S. App. 226a. But a

wrong shared by the public at large does not confer con-

crete, individualized injury, e.g., Lujan v. Defenders of

° The majority was wrong to assert that equal apportionment

is “an outcome that the Constitution does not require in the

state legislative context.” J.S. App. 168a n.299. The Constitu-

tion requires equal population, but States have some latitude

to deviate from strict mathematical equality. See Brown, 462

U.S. at 842 (“Our decisions have established, as a general] mat-

ter, that an apportionment plan with a maximum population

deviation under 10% falls within this category of minor devia-

tions.”).

17

Wildlife, 504 U.S. 555, 573-74 (1992), and it does not im-

ply that a wrong shared among any smaller subset of the

public at large does create an injury sufficient for Article

III standing. Cf J.S. App. 225a (interpreting Lujan to

hold that “an injury is not sufficiently particularized only

if it is a wrong shared by the ‘public at large’”). In any

event, if political affiliation is not an immutable charac-

teristic—and it is not; voters may split their tickets—

then “Democratic voters” could include any member of

the public at large.

Nor can the individual voter’s injury be defined as a

burden on political expression, at least not as that con-

cept has been articulated in this Court’s decisions. Un-

like the ballot-access restriction at issue in Anderson v.

Celebrezze, 460 U.S. 780, 806 (1983), which prevented in-

dependent voters from expressing support for their pre-

ferred candidate, assignment of Democratic voters to a

Republican-leaning district does not prevent any voter

from expressing his or her support for a Democratic can-

didate or the views he espouses. The boundaries of a sin-

gle-member district do not create “restrictions on the el-

igibility of voters and candidates.” Jd. at 786 n.7.

* * *

The majority's reasoning goes well beyond this

Court’s vote-dilution jurisprudence, but its partisan-ger-

rymandering test will not remove partisanship from the

redistricting process. Nor will it reduce partisan influ-

ence to an acceptable level, as it cannot even identify an

acceptable level of partisanship. It is virtually certain,

18

however, that any judicially created standard for detect-

ing partisan gerrymandering will make naked partisan-

ship a prominent and powerful weapon in redistricting

litigation. Given the uncertain contours of the district

court’s test—not to mention the questionable status of

the “rights” it protects—this case suggests strongly that

any hypothetical test trying to identify impermissible

partisan redistricting will only create unwarranted inter-

ference with the States’ fundamental political responsi-

bilities.

CONCLUSION

The Court should note probable jurisdiction and re-

verse the decision of the district court.

Respectfully submitted.

KEN PAXTON ScoTT A. KELLER

Attorney General of Texas Solicitor General

JEFFREY C. MATEER Counest of esore

First Assistant MATTHEW H. FREDERICK

Attorney General Deputy Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott. keller@oag.texas.gov

(512) 936-1700

APRIL 2017

19

COUNSEL FOR ADDITIONAL AMICI

Mark Brnovich

Arizona Attorney General

1275 W. Washington

Phoenix, AZ 85007

Leslie Rutledge

Arkansas Attorney General

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Curtis T. Hill, Jr.

Indiana Attorney General

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Room 219

Indianapolis, IN 46204

Jeff Landry

Louisiana Attorney General

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Derek Schmidt

Kansas Attorney General

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Bill Schuette

Michigan Attorney General

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Lansing, MI 48909

Joshua D. Hawley

Missouri Attorney General

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Adam Paul Laxalt

Nevada Attorney General

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Mike Hunter

Oklahoma Attorney General

313 NE 21st Street

Oklahoma City, OK 73105

Alan Wilson

South Carolina

Attorney General

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Columbia, SC 29201

Sean D. Reyes

Utah Attorney General

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Salt Lake City, UT 84114