# Amicus Curiae Brief — Gill v. Whitford, 138 S. Ct. 52 (2017) (No. 16-1161) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0740%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2017 ## Text 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 323 Center St., Suite 200 Little Rock, AR 72201 Curtis T. Hill, Jr. Indiana Attorney General 200 West Washington Street Room 219 Indianapolis, IN 46204 Jeff Landry Louisiana Attorney General 1885 N. Third Street Baton Rouge, LA 70802 Derek Schmidt Kansas Attorney General 120 SW 10th Ave., 2nd Floor Topeka, KS 66612 Bill Schuette Michigan Attorney General P.O. Box 30212 Lansing, MI 48909 Joshua D. Hawley Missouri Attorney General 207 W. High Street Jefferson City, MO 65102 Adam Paul Laxalt Nevada Attorney General 100 North Carson Street Carson City, NV 89701 Mike Hunter Oklahoma Attorney General 313 NE 21st Street Oklahoma City, OK 73105 Alan Wilson South Carolina Attorney General 1000 Assembly St., Rm. 519 Columbia, SC 29201 Sean D. Reyes Utah Attorney General 350 North State St., Ste. 230 Salt Lake City, UT 84114 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0740%3A08. Public record. Not legal advice.