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

RECORD

BRIEFS ,

>_

No. 16-1161

IN THE

Supreme Court of the United 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 OF THE WISCONSIN INSTITUTE FOR LAW

AND LIBERTY AS AMICUS CURIAE IN SUPPORT

OF APPELLANTS

RICHARD M. ESENBERG DOUGLAS R. Cox

WISCONSIN INSTITUT¢ FoR Counsel of Record

LAW AND LIBERTY AMIR C. TAYRANI

1139 East Knapp Street BRIAN M. LIPSHUTZ

Milwaukee, WI 53202 DAVID W. CASAZZA*

(414) 727-9455 GIBSON, DUNN & CRUTCHER LLP

rick@will-law.org 1050 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 955-8500

dcox@gibsondunn.com

* Admitted only in New York;

practicing under the supervision of

principals of tie firm.

Counsel for Amicus Curiae

IT.

i

TABLE OF CONTENTS

Partisan Gerrymandering Claims Are

Not Justiciable

A.

This Court’s Attempts To Wrestle

With Political Gerrymandering

Claims Provide Conflicting

Precedents And Inadequate

Guidance To District Courts.............

The Thirteen Years Of Confusion

Following This Court’s Decision In

Vieth v. Jubelirer Demonstrate

Repeated Litigation Over

Redistricting Damages The

Political Process And The Courts.....

Holding Partisan Gerrymandering

Claims Nonjusticiable Reaffirms

The Outcome Of Vieth And Would

Not Implicate Stare Decisis

OT <a

A Plan That Complies With

Traditional Redistricting Criteria Is

Not An Unconstitutional Political

SCRE REE EEE REE ERR EH EO

il

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Legislative Black Caucus v.

Alabama,

a 21, 22, 23

Ala. Legislative Black Caucus v.

Alabama,

988 F. Supp. 2d 1285 (M.D. Ala.

STA ER a Cn 4,10, 11

Ala. Legislative Black Caucus v.

Alabama,

No. 2:12-cv-691, 2017 WL 378674

Se BI IG HII BIT Pi icccecenvesccssessccccccsessesenseee 15

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

ee ee csndscccncsccocssssesvcscesosesesaseus 4,14

Baker v. Carr,

SRLS OO eae ne me 6

Burns v. Richardson,

TET SSA AE Ce TE LET 7

City of Cleburne v. Cleburne Living Ctr.,

ss adinapeipinemeaeteaiinls 5

Cox v. Larios,

i een easael 5

Davis v. Bandemer,

ea .7, 8,11

Ferrell v. Hall,

se teerenuapeaieeniasi 7

iil

Ferrell v. Halli,

339 F. Supp. 73 (W.D. Okla. 1972)........c.cccceceseeeee- 7

Fortson v. Dorsey,

ETS Ne Bete 71,22

Gaffney v. Cummings,

412 U.S. 735 (1973)............... Soinliniabdiieubdideasianatiell 7, 22

Gomillion v. Lightfoot,

TIT nssiriccinicccinhinbieneviitiniinanatebiiicdiih 6

INS v. Chadha,

I aa lcedeigel 4

Jimenez v. Hidalgo Cty. Water

Improvement Dist. No. 2,

isis iicndctassnsianinesscnesissuessecciiin 6

Jimenez v. Hidalgo Cty. Water

Improvement Dist. No. 2,

ae eS EY BU BOO veccccccccceccsccosecssconssee 7

Jones v. United States,

TST RS Aer A AR ES wer 4

Kerr v. Hickenlooper,

759 F.3d 1186 (10th Cir. 2014)..............cccc cc cceeeees 15

League of United Latin Am. Citizens v.

Perry,

548 U.S. 399 (2006)......................0 8, 9, 11, 14, 23

McIntyre v. Ohio Elections Comm’n,

Sa ctciinlindcenpnbaniieel 5

Miller v. Johnson,

ee ID cccsccesonpectecscensenesooss 2, 20, 21, 24

Montejo v. Louisiana,

I on snscnsincneenisiscvanebinciinn 16, 17

Nixon v. United States,

EER RE caren eR er 4

lV

Pearson v. Callahan,

By nn ccc csvcccbssnndsemnonsteenncoienes 16,17

Perez v. Texas,

No. 11-360, 2011 WL 9160142 (W.D.

iinet cdviniensesseesssccenebeie 11

Radogno v. Ill. State Bd. of Elections,

No. 11-4884, 2011 WL 5868225 (N.D.

Se I I cnccciiddcddnndncniesetaininebceess saseseess 4,10

Radogno v. Ill. State Bd. of Elections,

No. 11-4884, 2011 WL 5025251 (N.D.

ao ceunneubesitin 6, 10, 14

Raleigh Wake Citizens Ass’n v. Wake

Cty. Bd. of Elections,

827 F.3d 333 (4th Cir. 2016)..............ccccccscecsssesces 10

Raleigh Wake Citizens Ass’n v. Wake

Cty. Bd. of Elections,

166 F. Supp. 3d 553 (E.D.N.C. 2016) .................. 10

Republican Party of N.C. v. Hunt,

No. 94-2410, 1996 WL 60439 (4th

Be i siccscctedesnssteseessanctensedbonsesehees 15

Reynolds v. Sims,

ED eRe ae eae nee 2,6

Schlesinger v. Reservists Comm. to Stop

the War,

EE A Re ea 4

Seminole Tribe of Fla. v. Florida,

as cendcnsndinennatedinnseial 17

Shapiro v. McManus,

203 F. Supp. 3d 579 (D. Md. 2016)..................... 10

Shaw v. Reno,

ee SS I Ge cnccescscssovcccscsensessvensese 19, 21, 23

Vieth v. Jubelirer,

541 U.S. 267 (2004).....3, 5, 8, 9, 10, 11, 14, 15, 16,

17, 19, 20, 21, 23, 24

Wells v. Rockefeller,

a caeeesnloineamniees 7

Wells v. Rockefeller,

SEL FH. Bs SS STALIN. ©. LDTO)......c0ccccececersesseeseses 7

Wesberry v. Sanders,

iene eniinedinunsuninnihie 6

Whitcomb v. Chavis,

cs clhcesihniminnnie 7

WMCA, Inc. v. Lomenzo,

RE aa 6

WMCA, Inc. v. Lomenzo,

238 F. Supp. 916 (S.D.N.Y. 1965)..................:.cceee 6

Zivotofsky v. Clinton,

ace cusanboniion 2

Federal Constitutional Provisions

14

ee esp pmanninncncntane

State Constitutional Provisions

Alaaka Comat. art. VI, § &.......0...ccccccccccescccscesss

i, I I BD ccs cccecunscvetecsvesonse

es CR Es Se .. . .. cccsceneneutnetinmumonses

ne I OS ccctnineniansietanons

I ais cocidcgndienmquieutebinnsaces

Statutes

a edie utaenalie

Apportionment Act of 1842, 5 Stat. 491..............0

vi

Apportionment Act of 1872, 17 Stat. 28...

Idaho Code Ann. §§ 72-1501 et seg. .........

Wis. Stat. Ann. § 120.02(2) ......................

Proposed Legislation

H.R. 145, 115th Cong., lst Sess. (2017) ..

H.R. 151, 115th Cong., 1st Sess. (2017) ..

H.R. 711, 115th Cong., 1st Sess. (2017) ..

H.R. 713, 115th Cong., lst Sess. (2017) ..

H.R. 1102, 115th Cong., lst Sess. (2017)

Other Authorities

Michael Barone, Straight-Ticket Voting

in Divided Government, in THE

ALMANAC OF AMERICAN POLITICS

2016 (Richard E. Cohen & James A.

SE

Bill Bishop, THE BIG SORT (2009).............

Jesse Sussell & James A. Thomson, ARE

CHANGING CONSTITUENCIES DRIVING

RISING POLARIZATION IN THE U.S.

HOUSE OF REPRESENTATIVES? (Rand

David Wasserman, Purple America Has

All But Disappeared,

FIVETHIRTYEIGHT (Mar. 8, 2017) .......

Hearing on Wisconsin Redistricting

Plan Before the Wisconsin

Legislature, 100th Leg.,

Extraordinary Sess. 61 (Wis. 2011)....

socconccoossesces 14

INTEREST OF AMICUS CURIAE'

The Wisconsin Institute for Law and Liberty

(“WILL”) is a nonprofit organization that supports

and promotes the public interest in the rule of law,

individual liberty, constitutional government, and a

robust civil society.

WILL is an active participant in issues of public

concern to the State of Wisconsin. WILL has

represented plaintiffs in election law and free speech

cases. Among other matters, it successfully

challenged Wisconsin laws limiting aggregate

campaign contributions and donations from political

committees. It also obtained a favorable settlement in

a challenge to a local sign ordinance. In addition,

WILL’s president and general counsel testified at a

joint public hearing on redistricting before the

Wisconsin Legislature in 2011. WILL strives to

advance the debate concerning law and public policy

in these and other areas.

' Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae states that no counsel for a party authored this brief

in whole or in part and no party or counsel for a party made

a monetary contribution to fund the preparation or

submission of this brief. A contribution to fund the

submission of this brief was made by the Freedom Partners

Institute. Pursuant to Supreme Court Rule 37.2, counsel for

amicus curiae states that counsel for appellants and

appellees received timely notice of intent to file this brief.

Appellants have entered consent to the filing of amicus

curiae briefs on the docket; appellees have consented in

writing to the filing of this brief.

SUMMARY OF ARGUMENT

“(Ljegislative reapportionment is primarily a

matter for legislative consideration and

determination,” Reynolds v. Sims, 377 U.S. 533, 586

(1964), because “federalism and the slim judicial

competence to draw district lines weigh heavily

against judicial intervention in apportionment

decisions,” Miller v. Johnson, 515 U.S. 900, 934~—35

(1995) (Ginsburg, J., dissenting).

Federal courts “lac{k] the authority to decide”

disputes that raise political questions. Zivotofsky v.

Clinton, 566 U.S. 189, 195 (2012). A dispute asks a

political question when there is “a_ textually

demonstrable constitutional commitment of the issue

to a coordinate political department; or a lack of

judicially discoverable and manageable standards for

resolving it.” Jd.

In Wisconsin, federal courts have played a heavy

hand in the redistricting process since the 1980s,

imposing court-ordered pians in 1982, 1992, and 2002.

See App. 9a—11a. The district court in this case struck

down Wisconsin’s legislatively enacted redistricting

plan without articulating a manageable standard for

deciding claims of political gerrymandering. It found

no departure from traditional redistricting principles,

but nevertheless invalidated the plan because the

election results were insufficiently proportional to the

aggregated votes for Republican and Democratic

candidates statewide—an election that Wisconsin

does not hold.

As this case, and others like it, demonstrate, there

is no settled, workable standard by which to decide

how much disproportionality is too much. Therefore,

federal courts have no jurisdiction. This Court should

remove any lingering unc >rtainty by noting probable

3

jurisdiction and holding that “political

gerrymandering claims are nonjusticiable.” Vieth v.

Jubelirer, 541 U.S. 267, 281 (2004) (plurality opinion).

Even if this Court decides that a judicially

manageable standard can be devised for political

gerrymandering claims, it should reverse the district

court because apportionment plans that adhere to

traditional redistricting criteria are constitutionally

permitted. The opinions in Vieth reflect a consensus

that such districts cannot be challenged. See, e.z.,

Vieth, 541 U.S. at 306 (plurality opinion); id. at 307

(Kennedy, J., concurring in the judgment); id. at 318

(Stevens, J., dissenting); id. at 347 (Souter, J.,

dissenting). To affirm the district court on this issue

“would commit federal and state courts. to

unprecedented intervention in the American political

process,” id. at 306 (Kennedy, J., concurring in the

judgment), and require those courts to draw district

lines for everything from Congress to the State Senate

to the local school board. See, e.g., Wis. Const. art. IV,

§ 3 (providing for political apportionment of State

Senate districts); Wis. Stat. Ann. § 120.02(2)

(providing for political apportionment of school

boards). This would be both unwise and unworkable.

ARGUMENT

This case provides an opportunity for this Court

to address a confusing area of law that has harmed

the political institutions of the States and left district

courts struggling to answer “unsolvable” questions,

Radogno v. Ill. State Bd. of Elections, No. 11-4884,

2011 WL 5868225, at *2 (N.D. Ill. Nov. 22, 2011)

(Radogno II), by employing “unknowable” standards,

Ala. Legislative Black Caucus v. Alabama, 988 F.

Supp. 2d 1285, 1296 (M.D. Ala. 2013) (ALBC DN.

4

The limit on the judicial power imposed by the

political question doctrine is jurisdictional—the court

has no power to render judgment in a dispute if there

is no standard. Schlesinger v. Reservists Comm. to

Stop the War, 418 U.S. 208, 215 (1974) (“The concept

of justiciability expresses the jurisdictional

limitations imposed upon federal courts by the ‘case

or controversy requirement of Article III.”). The

political question doctrine does not prevent courts

from asserting jurisdiction merely “because the issues

have political implications,” JNS v. Chadha, 462 U.S.

919, 943 (1983), but it does prevent a court from

usurping the prerogatives of the political branches

when the constitutional basis for the claim “lacks

sufficient precision to afford any judicially

manageable standard of review.” Nixon v. United

States, 506 U.S. 224, 230 (1993); see also, e.g., Ariz.

State Legislature v. Ariz. Indep. Redistricting

Comm'n, 135 S. Ct. 2652, 2660 n.3 (2015) (sovereign

right of the people to “reservle] for themselves the

power to adopt laws and to veto measures passed by

elected representatives” presents a nonjusticiable

political question); Jones v. United States, 137 U.S.

202, 216-17 (1890) (courts have no means of

reviewing executive’s determination of sovereignty

over a territory).

Appellees grounded their arguments below on the

First Amendment and the Equal Protection Clause.

Neither provides a clear or appropriate standard to

judge their claims. Appellees’ First Amendment claim

is unworkable because it would subject all

apportionment plans to strict scrutiny as restrictions

on core political speech or associational interests,

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347

(1995), which then would preclude all political

considerations. That is hard to square with the

5

position of a majority of this Court that “politics as

usual’ is ... itself a ‘traditional’ redistricting

criterion.” Cox v. Larios, 542 U.S. 947, 952 (2004)

(Scalia, J., dissenting) (citing Vieth, 541 U.S. at 285

(plurality opinion); Vieth, 541 U.S. at 307 (Kennedy,

J., concurring in the judgment); id. at 344 (Souter, J.,

dissenting); id. at 355 (Breyer, J., dissenting)).

An Equal Protection Clause claim similarly

provides no workable standard because partisanship

is neither an immutable characteristic nor a protected

classification. See City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 440 (1985) (classifications by race,

alienage or national origin are subject to strict

scrutiny). Nothing in the Equal Protection Clause

requires state governments to act in a way that

minimizes the _ political comsequences of the

geographic concentration of voters by party.

After more than fifty years of wrangling with

these challenges, this Court should acknowledge that

there is no determinable legal standard by which a

court can consistently and impartially determine

whether partisan reapportionment goes “too far.”

These cases are nonjusticiable.

I. PARTISAN GERRYMANDERING CLAIMS ARE NOT

J USTICIABLE

After this Court entered the redistricting fray in

Baker vy. Carr, 369 U.S. 186 (1962), district courts

have come to anticipate apportionment litigation

“(llike a periodic comet, once every ten years.”

Radogno v. Ill. State Bd. of Elections, No. 11-4884,

2011 WL 5025251, at *1 (N.D. Ill. Oct. 21, 2011)

(Radogno I). When plaintiffs allege a political

gerrymander, courts struggle to make sense of the

claim.

6

A. This Court’s Attempts To Wrestle With

Political Gerrymandering Claims

Provide Conflicting Precedents And

Inadequate Guidance To District Courts

This Court first held that apportionment plans

were susceptible to constitutional challenges in Baker

v. Carr. 369 U.S. at 187. The Court also held that

apportionment plans must distribute the population

in roughly equivalent districts, Reynolds v. Sims, 377

U.S. 533, 568 (1964); Wesberry v. Sanders, 376 U.S. 1,

7-8 (1964), and cannot divide racial groups to

“deprivle members of one race] of the municipal

franchise,” Gomillion v. Lightfoot, 364 U.S. 339, 347

(1960).

Soon this Court was called on to decide whether

the Constitution permitted politically motivated

apportionment plans. Its early decisions were

inconsistent. Compare WMCA, Inc. v. Lomenzo, 382

U.S. 4 (1965), summarily affg 238 F. Supp. 916

(S.D.N.Y. 1965) (political apportionment claim is not

justiciable); Jimenez v. Hidalgo Cty. Water

Improvement Dist. No. 2, 424 U.S. 950 (1976),

summarily aff g 68 F.R.D. 668 (S.D. Tex. 1975) (same);

Ferrell v. Hall, 406 U.S. 939 (1972), summarily aff'g

339 F. Supp. 73 (W.D. Okla. 1972) (same); Wells v.

Rockefeller, 398 U.S. 901 (1970), summarily affg 311

F. Supp. 48 (S.D.N.Y. 1970) (same), with Fortson v.

Dorsey, 379 U.S. 433, 439 (1965) (plans that

“minimize or cancel out the voting strength of racial

or political elements of the voting population” are

invalid); Burns v. Richardson, 384 U.S. 73, 88 (1966)

(quoting Fortson); Whitcoral v. Chavis, 403 U.S. 124,

143 (1971) (same); and Gaffney v. Cummings, 412

U.S. 735, 751 (1973) (adjudicating claim of political

apportionment without assessing justiciability).

After years of conflicting decisions, a fractured

majority of this Court held that assertions of partisan

apportionment presented a justiciable question in

Davis v. Bandemer, 478 U.S. 109 (1986), but neither

the Bandemer Court nor any subsequent Court has

been able to agree on a standard for such cases.

Bandemer’s plurality opinion suggested a two-

part test, with plaintiffs “required to prove both

intentional discrimination against an identifiable

political group and an actual discriminatory effect on

that group.” 478 U.S. at 127 (White, J., concurring).

For the plurality, that an apportionment plan

emerged from a political process was almost per se

proof of discriminatory intent. Jd. The plurality’s

proposed test for discriminatory effect \.as more

demanding than its intent test but less precise—the

“mere lack of proportional representation” was not

sufficient; rather, plaintiffs had to show that the plan

“consistently degrade[d] a voter’s or a group of voters’

influence on the political process as a whole.” Id. at

131-32. Justice Powell proposed an alternative

standard that considered “a number of other relevan*

neutral factors,” including “the configuration of the

districts, the observance of political subdivision lines,

and other criteria that have independent relevance to

the fairness of districting’—in short, traditional

redistricting criteria. Id. at 161-62, 165 (Powell, J.,

concurring in part and dissenting in part).

Bandemer proved difficult in application. Vieth v.

Jubelirer, 541 U.S. 267, 283 (2004) (cataloging

confusion in both courts and scholarship caused by

Bandemer).

This Court once again considered justiciability in

Vieth. The Court explicitly retreated from Bandemer,

and a majority of the Justices agreed that partisan

8

gerrymandering claims could be considered only

rarely, if at all. A plurality concluded “that political

gerrymandering claims are nonjusticiable and that

Bandemer was wrongly decided.” Jd. at 281. The

concurrence “would not foreclose all possibility of

judicial relief” but agreed that, after nearly twenty

years, no manageable standard had been identified,

which “make{s] our intervention improper.” Z/d. at

306, 317 (Kennedy, J., concurring in the judgment).

The four dissenting Justices authored three opinions,

each proposing a different standard, none of which

replicated the Bandemer plurality’s test.

Two years after Vieth, this Court returned to the

question of political apportionment and once again

failed to provide any standard. League of United

Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)

(LULAC). The Court observed that “disagreement

persists” regarding the justiciability of political

gerrymandering claims but declined to revisit Vieth.

LULAC, 548 US. at 414. None of the Court’s six

opinions garnered a majority. Nevertheless, a

majority of the Court agreed that the plaintiffs had

not identified constitutionally flawed partisanship in

the mid-decade redistricting plan even though “(t]he

legislature [did] seem to have decided to redistrict

with the sole purpose of achieving a Republican

congressional majority.” Jd. at 417; see id. at 423

(plurality opinion); id. at 483 (Souter, J., concurring

in part); id. at 511 (Scalia, J., concurring in the

judgment in part).

9

B. The Thirteen Years Of Confusion

Following This Court’s Decision In

Vieth v. Jubelirer Demonstrate That No

Manageable Standard Will Emerge

Bandemer’s legacy proved to be “one long record of

puzzlement and consternation.” Vieth, 541 U.S. at

282; see also id. at 283. While the plurality in Vieth

took this puzzlement as proof that these cases have no

workable standard, the concurrence argued that

district courts between Bandemer and Vieth were

bound to “do no more than follow” the “single,

apparently insuperable standard” described by the

Bandemer plurality. Jd. at 312 (Kennedy, J.,

concurring in the judgment). The concurrence

suggested that district courts might be more

successful devising a standard once freed from

Bandemer. Id. They have not been. Instead, they

struggle to apply caselaw that is “foggy at best,” and

consists mainly of “cobbled-together plurality

opinions that place district courts in the untenable

position of evaluating political gerrymandering claims

without any definitive standards.” Radogno I, 2011

WL 5025251, at *4.

When last this Court considered the justiciability

of partisan gerrymandering, the Vieth plurality

concluded that “lelighteen years of essentially

pointless litigation have persuaded us that Bandemer

is incapable of principled application.” Vieth, 541 US.

at 306. “[E]ssentially pointless litigation” has now

continued for thirteen more years. The nine opinions

in Vieth and Bandemer could not identify a rule of

decision with support from a majority of the Justices.

Nor did any standard obtain a majority across the six

opinions authored in LULAC.

10

The predictable outcome is confusion and

disquiet in the lower courts. See, e.g., Shapiro v.

McManus, 203 F. Supp. 3d 579, 594 (D. Md. 2016)

(“while political gerrymandering claims premised on

the Equal Protection Clause remain justiciable in

theory, it is presently unclear whether an adequate

standard to assess such claims will emerge”); Raleigh

Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 166

F. Supp. 3d 553, 591 n.15 (E.D.N.C.) (observing the

“extraordinary tension” among this Court’s partisan

gerrymandering decisions), affd in part, 827 F.3d 333,

348 (4th Cir. 2016) (“the Supreme Court has not yet

clarified when exactly partisan considerations cross

the line from legitimate to unlawful”); ALBC J, 988 F.

Supp. 2d at 1296 (“the standard for adjudication of

(plaintiffs’] claim of partisan gerrymandering is

‘unknowable”™), Radogno I/, 2011 WL 5868225, at *2

(“political gerrymandering claims ... are currently

‘unsolvable’ based on the absence of any workable

standard for addressing them”); Perez v. Texas, No.

11-360, 2011 WL 9160142, at *11 (W.D. Tex. Sept. 2,

2011) (dismissing political gerrymandering claims

due to absence of “a reliable standard by which to

measure the redistricting plan’s alleged burden on...

representational! rights”).

In short, the Supreme Court has left lower courts

“askling] . . . how we could ‘allow a claim to go forward

that no one understands?” ALBC I, 988 F. Supp. 2d

at 1296. Predictably, “the results from one

gerrymandering case to the next” have proven

“disparate and inconsistent.” Vieth, 541 U.S. at 308

(Kennedy, J., concurring in the judgment).

The “efficiency gap” metric proposed by the

appellees here is no solution. It is neither novel nor

rooted in any constitutional right. This measure is

11

merely a dressed-up form of proportionality analysis,

and even the Bandemer plurality agreed that “the

mere lack of proportional representation will not be

sufficient to prove unconstitutional discrimination.”

Bandemer, 478 U.S. at 132; see also LULAC, 548 U.S.

at 419-20 (Kennedy, J., concurring in the judgment)

(‘there is no_ constitutional requirement 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”).

Furthermore, the “efficiency gap” identified by the

district court is attributable not to nefarious political

gerrymandering but to changing political geography.

Parties suffer large numbers of “wasted” votes

because like-minded voters increasingly live in close

proximity to each other. App. 307a—1lla (discussing

Wisconsin’s political geography); see also Michael

Barone, Straight-Ticket Voting in Divided

Government, in THE ALMANAC OF AMERICAN POLITICS

2016, at 19 (Richard E. Cohen & James A. Barnes eds.,

2015) (Electoral outcomes are “largely the result of

demographic clustering, the fact that heavily

Democratic voting groups—blacks, Hispanics (in

many states) and gentry liberals—tend to be clustered

in most central cities, many sympathetic suburbs and

most university towns, while Republican voters are

spread more evenly around the rest of the

country....{[Cjlustering helps Republicans in

elections held in equal-population districts, since

Democratic votes are clustered in relatively few

districts and Republican votes are more evenly spread

around in the rest.”); Bill Bishop, THE BIG SORT

(2009); Jesse Sussell & James A. Thomson, ARE

CHANGING CONSTITUENCIES DRIVING _ RISING

POLARIZATION IN THE U.S. HOUSE’ OF

REPRESENTATIVES’, at 5—8 (Rand 2015).

12

Nationwide, in the 2016 election, 61% of voters

cast ballots in counties that went at least 60-40 to one

presidential candidate, up from 50% of voters living in

such counties in 2012 and 39% of voters in 1992.

David Wasserman, Purple America Has All But

Disappeared, FIVETHIRTYEIGHT (Mar. 8, 2017),

https://fivethirtyeight.com/features/purple-america-

has-all-but-disappeared/. In 2016, only 303 of

America’s 3,113 counties were decided by a single-

digit margin, while in 1992, 1,096 counties were

decided by single-digit margins. Jd. Over the same

period, the number of counties decided by margins

greater than 50 percentage points increased from 96

to 1,196. Id. Minimizing the “efficiency gap” in this

rapidly changing political landscape would require

legislatures to draw tortured districts in a fruitless,

open-ended quest for some notion of competitiveness.

Nor is there any neutral way for courts to superintend

such a process or to impartially redraw districts after

invalidating a politically drafted plan.

Advancing technology, far from assisting

reviewing courts, merely increases the challenge of

identifying a standard. Legislatures (and litigants)

are now able to draw an infinite variety of potential

maps with a few keystrokes, each marginally different

in its balancing of the traditional voting criteria.

District courts are not authorized or equipped to draw

sharp lines separating the constitutionally

permissible from the impermissible among an infinite

variety of computer-generated plans.

C. Repeated Litigation Over Redistricting

Damages The Political Process And The

Courts

Judicial micromanagement of the redistricting

process destabilizes the political branches. The

13

district court’s “efficiency gap” test boils down to a

proportionality requirement that would undermine

single-member districts. App. 276a—79a. If

legislative representation must match statewide voter

preferences, courts will eventually require a

proportional representation system (particularly as

minor-party or special-interest plaintiffs bring

claims). See Joint Public Hearing on Wisconsin

Redistricting Plan Before the Wisconsin Legislature,

100th Leg., Extraordinary Sess. 61 (Wis. 2011)

(statement of Professor Richard Esenberg). That

system will diminish electoral accountability and

increase legislative gridlock as shifting coalitions

transition in and out of power. See Vieth, 541 U.S. at

357-58 (Breyer, J., dissenting).

There is no need for this. Citizens can use the

political process to restrain partisan apportionment.

Vieth, 541 U.S. at 362-63 (Breyer, J., dissenting); see

also Ariz. State Legislatre v. Ariz. Indep.

Redistricting Comm’n, 135 8S. Ct. 2652, 2663 (2015)

(upholding redistricting commission adopted through

initiative process); Cal. Const. art. XXI, §§ 1-3

(establishing redistricting commission); Alaska Const.

art. VI, § 8 (same); Wash. Const. art. II, § 43 (same);

Idaho Code Ann. §§ 72-1501 et seq. (same). Even in

States where the political branches conduct

apportionment, state law and electoral accountability

provide a check on partisan gerrymanders. At the

federal level, Congress has the authority to police

apportionment of congressional districts. U.S. Const.

art. I, § 4; see also 2 U.S.C. § 2c; Apportionment Act of

1842, 5 Stat. 491; Apportionment Act of 1872, 17 Stat.

28. And there are five bills currently pending in

Congress that propose to regulate apportionment.

H.R. 1102, H.R. 711, H.R. 713, H.R. 151, H.R. 145,

115th Cong., 1st Sess. (2017).

14

Political apportionment challenges also impose

serious burdens on judicial resources. Redistricting

litigation bursts into the federal courts at the

conclusion of each Census cycle. Radogno I, 2011 WL

5025251, at *1. Mid-cycle redistricting generates

further litigation. LULAC, 548 U.S. at 409-10. Nor

is litigation limited to only a handful of States—

apportionment lawsuits are filed across the nation.

Because these lawsuits are heard by three-judge

district courts and require exhaustive judicial fact-

finding, they impose unusually high demands on

judges. See, e.g., Ala. Legislative Black Caucus v.

Alabama, No. 2:12-cv-691, 2017 WL 378674 (M.D.

Ala. Jan. 20, 2017) (457-page slip opinion); App. la—

315a (116-page slip opinion).? Apportionment

challenges drag on for years, often reaching resolution

only as the next Census approaches.

A fractured result, as in Bandemer and Vieth,

affirming the decision below would put district courts

in “litigation limbo,” condemning them to “many more

years wrestling with [these cases] all without a wisp

of an idea what rule of law might govern [their]

disposition.” Kerr v. Hickenlooper, 759 F.3d 1186,

1195 (10th Cir. 2014) (Gorsuch, J., dissenting from

* The Vieth plurality identificd a perfect example of the futile burdens

these cases place on district courts. A North Carolina district court

considered 311| stipulations, 132 witness statements, and 300 exhibits.

and heard two days of oral argument, before concluding that the

State's system of statewide clection of superior court judges “resulted

in Republican candidates expenencing a consistent and pervasive lack

of success and exclusion from the electoral process as a whole™ and

that “these effects were likely to continue unabated into the future.”

Republican Party of N.C. v. ifint. No. 94-2410, 1996 WL 60439, at

*1) (4th Cir. Feb. 12. 1996). Five days after the district court's ruling,

every Republican candidate running for superior court under that same

electoral system prevailed. lieth, 54) U.S. at 287 o.8. The circuit

court remanded for reconsideration. /d.

15

denial of reh’g en banc). Recognizing that these

questions are nonjusticiable would acknowledge the

reality of redistricting and relieve the courts and the

political branches of these harms.

D. Holding Partisan Gerrymandering

Claims Nonjusticiable Reaffirms The

Outcome Of Vieth And Would Not

Implicate Stare Decisis Concerns

In Vieth, the entire Court declined to follow the

plurality’s standard in Bandemer. A plurality of four

Justices concluded “that Bandemer was wrongly

decided,” Vieth, 541 U.S. at 281, while another Justice

joined the judgment, noting “the shortcomings” of

Bandemer and observing that the Court’s inability to

describe a standard “make(s] our intervention

improper,” see id., at 308, 316 (Kennedy, J.,

concurring in the judgment).

To the extent that Vieth arguably left open the

slender possibility that partisan gerrymandering

cases may be justiciable, the doctrine of stare decisis

is no barrier to this Court’s holding that they are

nonjusticiable. “Beyond workability, the relevant

factors in deciding whether to adhere to the principle

of stare decisis include the antiquity of the precedent,

the reliance interests at stake, and of course whether

the decision was well reasoned.” Montejo v.

Louisiana, 556 U.S. 778, 792-93 (2009). This Court

also considers whether “experience has pointed up the

precedent’s shortcomings.” Pearson v. Callahan, 555

U.S. 223, 233 (2009).

None of these factors counsels in favor of the

justiciability of partisan gerrymandering claims, for

substantially the same reasons that the Court

abrogated Bandemer in Vieth. First, there is no

workable test to disturb. See supra § 1.B. This Court

16

has not hesitated to overturn fractured decisions that

“creat[e] confusion among the lower courts,” Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 64 (1996), or that

contain no test at all, see Vieth, 541 U.S. at 305-06

(plurality opinion) (noting “the majority’s inability to

enunciate the judicially discernible and manageable

standard that it thought existed”). Second, the

decision in Vieth is only thirteen years old, which is

younger than other decisions that this Court has

overturned. See, e.g., Montejo, 556 U.S. at 793

(overturning a decision that was “only two decades

old”). Third, the reliance interests are “weak because

it is hard to imagine how any action taken in reliance

upon [the decision] could conceivably be frustrated—

except the bringing of lawsuits, which is not the sort

of primary conduct that is relevant.” Vieth, 541 U.S.

at 306 (plurality opinion). Fourth, the fractured

nature of the decision means that there is no concern

with overturning a well-reasoned opinion. Cf.

Seminole Tribe, 517 U.S. at 66 (calling a decision “of

questionable precedential value, largely because a

majority of this Court expressly disagreed with the

rationale of the plurality”). And, fifth, thirteen years

of confusion in the district courts have “pointed up the

precedent’s shortcomings.” Pearson, 555 U.S. at 233;

see supra § I.B.

* a *

Consequently, the Court should note probable

jurisdiction and provide authoritative guidance to

district courts by holding that assertions of partisan

gerrymandering present a nonjusticiable question.

17

Il. A PLAN THAT COMPLIES WITH TRADITIONAL

REDISTRICTING CRITERIA IS NOT AN

UNCONSTITUTIONAL POLITICAL GERRYMANDER

Another question raised by this case is whether a

district can be a political gerrymander when it

complies with traditional, politically neutral

redistricting criteria. For example, the majority party

in the legislature might draw a district that it hopes

will favor its constituency in the next election, but the

map also might contain compact, contiguous districts

that respect political subdivisions and communities of

interest. See Wis. Const. art. IV, § 4 (“such districts

[are] to be bounded by county, precinct, town or ward

lines, to consist of contiguous territory and be in as

compact form as practicable”).

Even if a claim of political gerrymandering is

justiciable, this Court should note probable

jurisdiction and hold that a district that complies with

traditional redistricting criteria is not an

unconstitutional partisan gerrymander. The district

court reached the opposite conclusion, holding that an

unconstitutional gerrymander occurred even though,

as the dissent observed, “the plaintiffs did not argue

that Act 43 created any districts with unusual shapes

or lines” and did not show any “appreciable problems

with contiguity, compactness, or regard for political

boundaries.” App. 250a—5la. The district court’s

reasoning ignores the consensus on this issue in Vieth

and the logic of this Court’s other gerrymandering

cases.

As the dissent noted below, all but one of the

opinions in Vieth adopted the commonsense position

that a district that complies with traditional

redistricting criteria is not an unconstitutional

political gerrymander. True, the plurality rejected the

18

workability of the subordination test as a means of

deciding whether a district is a political gerrymander.

See Vieth, 541 U.S. at 284-90. But the plurality would

not have allowed any challenges to districts as

political gerrymanders, which means that they would

not strike down a district that complied with

traditional redistricting criteria.

Three of the four dissenters—who agreed on little

—made clear that they would uphold districts that

complied with traditional redistricting criteria.

Justice Stevens would have held a_ district

unconstitutional “when any pretense of neutrality is

forsaken unabashedly and all traditional districting

criteria are subverted for partisan advantage.” Vieth,

541 U.S. at 318 (Stevens, J., dissenting); see also id. at

335 (“We have explained that ‘traditional principles|]’

. ‘may serve to defeat a claim that a district has

been gerrymandered on racial lines.” (quoting Shaw

v. Reno, 509 U.S. 630, 647 (1993))); id. at 339 (“[(LIf no

neutral criterion can be identified to justify the lines

drawn ... then no rational basis exists to save the

district from an equal protection challenge.”). Justice

Souter, joined hy Justice Ginsburg, proposed a five-

part prima facie case that a plaintiff must make,

inchuding that “the district of his residence paid little

or no heed to. . . traditional districting principles.” Jd.

at 347-48 (Souter, J., dissenting) (citation omitted);

see also id. at 349 (requiring the plaintiffs to “establish

specific correlations between the district’s deviations

from traditional districting principles and the

distribution of the population” and to “present the

court with a hypothetical district” that “deviated less

from traditional! districting principles than the actual

district”).

19

Justice Kennedy’s concurring opinion also leads to

the conclusion that a district that complies with

traditional redistricting criteria is constitutional. He

stated that “[a] determination that a gerrymander

violates the law must rest on something more than the

conclusion that political classifications were applied.

It must rest instead on a conclusion that the

classifications, though generally permissible, were

applied in an invidious manner or in a way unrelated

to any legitimate legislative objective.” Vieth, 541

U.S. at 307 (Kennedy, J., concurring in the judgment).

Under this test, a district that complies with

traditional redistricting criteria would pass muster

because it would be “[rlelated to [] legitimate

legislative objective[s].”. Even though the Court

agreed on little in Vieth, all but one Justice explicitly

stated that a district is not an unconstitutional

partisan gerrymander when it complies with

traditional redistricting criteria.

This rule is consistent with the caselaw on racial

gerrymandering. In those cases, “a plaintiff must

prove that the legislature subordinated traditional

race-neutral districting principles, including but not

limited to compactness, contiguity, and respect for

political subdivisions or communities defined by

actual shared interests.” Miller v. Johnson, 515 U.S.

900, 916 (1995). Under this “subordination test,”

“[wjhere these or other race-neutral considerations

are the basis for redistricting legislation, and are not

subordinated to race, a State can ‘defeat a claim that

a district has been gerrymandered on racial lines.”

Id. (quoting Shaw, 509 U.S. at 647); see also Ala.

Legislative Black Caucus v. Alabama, 135 S. Ct. 1257,

1270 (2015) (“[Tlhe ‘plaintiff must prove that the

legislature subordinated traditional districting

20

principles . . . to racial considerations.” (quoting

Miller, 515 U.S. at 916 (emphasis omitted)) (ALBC IJ).

The Court has applied the subordination test in

the context of racial gerrymandering for reasons that

apply to all claims of gerrymandering. First,

“(ejlectoral districting is a most difficult subject for

legislatures, and so the States must have discretion to

exercise the political judgment necessary to balance

competing interests.” Miller, 515 U.S. at 915; see also

id. at 916 (referring to “the sensitive nature of

redistricting”). Second, this Court has recognized a

“presumption of good faith that must be accorded

legislative enactments.” Jd. Third, there is an

“evidentiary difficulty” in establishing whether a

legislature was motivated by impermissible

considerations or was merely aware of them. Id.; see

also Shaw, 509 U.S. at 646 (referring to the “difficulty

of proof”). These three factors “requirle] courts to

exercise extraordinary caution,” Miller, 515 U.S. at

916, in all partisan gerrymandering cases that turn

on proof of alleged discriminatory effect. See also

Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the

judgment) (affording “judicial relief’ in political

gerrymandering cases only “if some limited and

precise rationale were found to correct an established

violation of the Constitution in some redistricting

cases.” (emphasis added)); id. at 307 (noting the risk

for the courts of “assuming political, not legal,

responsibility for a process that often produces ill will

and distrust”).

The district court in this case abandoned the

restraint counseled by this Court. The majority

concluded that “[iJt is entirely possible to conform to

legitimate redistricting purposes but still violate the

Fourteenth Amendment because the discriminatory

21

action is an operative factor in choosing the plan.”

App. 120a. In reaching this conclusion, it relied

primarily on inapposite dicta from Fortson v. Dorsey,

379 U.S. 433 (1965), and Gaffney v. Cummings, 412

U.S. 735 (1973), which were one-person, one-vote

cases. But “an equal population goal . . . is part of the

redistricting background,” not a_ traditional

redistricting principle. ALBC I/, 135 S. Ct. at 1270.

As a result, these cases do not resolve whether

compliance with traditional redistricting principles is

sufficient to defeat a claim of political

gerrymandering.

If compliance with traditional redistricting

criteria is not a floor for political gerrymandering

claims, then courts will be propelled deep into the

political process. As noted above, passing upon the

constitutionality of choices among options that all

comply with traditional redistricting criteria will force

courts to decide how much partisanship is too much—

a subjective political judgment. And a legislature that

was impermissibly partisan—however that is

defined—when it drew the initial map likely will

remain impermissibly partisan when a court orders it

to draw a new one. If so, courts will end up drawing

more plans themselves and shouldering “the

difficulties ... in drawing a map that is fair and

rational.” LULAC, 548 U.S. at 415. These tasks will

further burden the district courts in an area where

this Court has already expressed doubts about

manageability. See, e.g., Vieth, 541 U.S. at 307-08

(Kennedy, J., concurring in the judgment); see also

supra § 1.C.

Redistricting by a legislature has always been an

unavoidably political process. Vieth, 541 U.S. at 274

(plurality opinion); see also ALBC II, 135 S. Ct. at

22

1270 (listing “political affiliation” as a traditional

redistricting criterion); Vieth, 541 U.S. at 360 (Breyer,

J., dissenting) (“[T]raditional or historically based

boundaries are not, and should not be, ‘politics free.”);

Shaw, 509 U.S. at 646 (noting that the legislature “is

aware of .. . political persuasion” when it redistricts).

And what history has sanctioned, modern thought has

ratified. “[D]rawing lines for congressional districts is

one of the most significant acts a State can perform to

ensure citizen participation in republican self-

governance.” LULAC, 548 U.S. at 416. And “purely

political boundary-drawing, even where harmful to

the members of one party, will often nonetheless find

justification in other desirable democratic ends, such

as Maintaining relatively stable legislatures in which

a minority party retains significant representation.”

Vieth, 541 U.S. at 360 (Breyer, J., dissenting).

Because of the political nature of redistricting and

general principles about the limited role of our federal

judiciary, the courts cannot plausibly require the

legislature to redraw every politically motivated

district. “A decision ordering the correction of all

election district lines drawn for partisan reasons

would commit federal and state courts to an

unprecedented intervention in the American political

process.” Vieth, 541 U.S. at 306 (Kennedy, J.,

concurring in the judgment); see also Miller, 515 U.S.

at 916 (stating that “courts must... recognize . . . the

intrusive potential of judicial intervention into the

legislative realm” in redistricting cases). The task of

the courts—if these claims are even justiciable—is to

regulate political gerrymanders in which “legislative

restraint was abandoned.” Vieth, 541 U.S. at 316

(Kennedy, J., concurring in the judgment). Restraint

has not been abandoned when traditional

redistricting principles are observed.

23

* * *

As noted above, the Court should put an end to

the confusion in the district courts by noting probable

jurisdiction and holding that political gerrymandering

claims are nonjusticiable. Even if this Court were not

satisfied with thirteen years of trial and error on that

point, it should at least clarify that a district that

complies with traditional redistricting criteria cannot

be an unconstitutional partisan gerrymander.

CONCLUSION

For the foregoing reasons, this Court should note

probable jurisdiction and hold that assertions of

political gerrymandering present a nonjusticiable

question.

Respectfully submitted,

RICHARD M. ESENBERG DOUGLAS R. Cox

WISCONSIN INSTITUTE FOR LAW Counsel of Record

AND LIBERTY AMIR C. TAYRANI

1139 East Knapp Street BRIAN M. LIPSHUTZ

Milwaukee, WI 53202 DAVID W. CASAZZA*

(414) 727-9455 GIBSON, DUNN & CRUTCHER LLP

rick@will-law.org 1050 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 955-8500

dcox@gibsondunn.com

* Admitted only in New York;

practicing under the supervision

of principals of the firm.

Counsel for Amicus Curiae

April 24, 2017