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

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RECORD 2

. AND | FILED

JUL 28 2017

BRIEFS

No. 16-1161 SUPREME COATES

In the Supreme Court of the United States

BEVERLY R. GILL, ET AL., APPELLANTS,

Vv.

WILLIAM WHITFORD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF FOR APPELLANTS

BRAD D. SCHIMEL MISHA TSEYTLIN

Attorney General Solicitor General

Counsel of Record

KEVIN M. LEROY RYAN J. WALSH

Deputy Solicitor Chief Deputy

General Solicitor General

State of Wisconsin AMY C. MILLER

Department of Justice Assistant Solicitor

17 West Main Street General

Madison, WI 53703

tseytlinm @doj.state. wi.us BRIAN P. KEENAN

(608) 267-9323 Assistant Attorney

General

Attorneys for Appellants

QUESTIONS PRESENTED

1. Did the district court lack jurisdiction over this

case because Plaintiffs have no standing to bring their

statewide partisan-gerrymandering claims?

2. Did the district court lack jurisdiction over this

case because statewide partisan-gerrymandering

claims are nonjusticiable?

3. Did Plaintiffs fail to state a claim on which relief

can be granted because they failed to articulate a

“limited and precise” standard, Vieth v. Jubelirer, 541

U.S. 267, 306, 311 (2004) (Kennedy, J., concurring in

the judgment)?

4. Are Defendants entitled to judgment because

Act 43 complies with traditional redistricting princi-

ples and is otherwise unobjectionable?

5. Are Defendants entitled, at the very minimum,

to a remand so that they can present evidence under

a fairly noticed legal standard?

PARTIES TO THE PROCEEDING

The following were parties in the court below:

Plaintiffs:

William Whitford, Roger Anclam, Emily Bunting,

Mary Lynn Donohue, Helen Harris, Wayne Jen-

sen, Wendy Sue Johnson, Janet Mitchell, Allison

Seaton, James Seaton, Jerome Wallace, and Don-

ald Winter:

Defendants:

Beverly R. Gill, Julie M. Glancey, Ann 8S. Jacobs,

Steve King, Jodi Jensen (substituted for her pre-

decessor, Don Millis), and Mark L. Thomsen, in

their official capacities.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...0000.0.......cececeeee ee eeceeeeeees i

PARTIES TO THE PROCEEDING.........0......0.00...006. ii

ERSTE Ter annem ne cen ana none ORB 1

cache ed linioiibanmnietachtbiicapindi 4

eR EER IRIS RSI tne sees Ueda Spa eIoe 5

CONSTITUTIONAL PROVISIONS

Rhckitnieticcektipstpslasicipmmbbupmiiiieninicinteseccositptinded 5

TET tiichsncicteaitiatncnssnnepeanbiniinutsancbiaibnesabeaidtanices 5

A. Political Gerrymandering In Early

I HE eciscncdcndescccanedastdencensetbeecise 5

B. Wisconsin’s General Assembly, From

Wisconsin’s Founding To Act 43............... 10

C. Procedural Background .........................0+ 17

SUMMARY OF ARGUMENT. ....00.0.000..cccccceececeete cerns 22

EEE ce I SE CREE ae ET 26

L The District Court Lacked Jurisdiction ........ 26

A. Plaintiffs Have No Standing To Bring

Their Statewide Claims. ..............0...0cceeeee 27

B. Plaintiffs’ Challenge To Act 43 As An

Unlawful Statewide Gerrymander

Presents A Nonjusticiable Controversy ...34

Il. Plaintiffs Failed To State A Claim Because

They Did Not Offer A “Limited And Precise”

Test For Adjudicating Their Allegations....... 41

Ii. Act 43 Is Lawful Because It Complies With

Traditional Redistricting Principles And Is

Otherwise Unobjectionable........................00- 59

I ictiniadediassiisinatns,tilbacstmibecibiediahdanchiapietaenbiae’ 67

TABLE OF AUTHORITIES

Cases

Ala. Legislative Black Caucus v. Alabama,

Gi Ie Ce indrscecincsccceseentnsscovcsneves passim

Baker v. Carr,

I neat 12, 33

Baldus v. Members of Wis. Gov't Accountability

Bd.,

849 F. Supp. 2d 840 (E.D. Wis. 2012) ................ 14

Baumgart v. Wendelberger,

Nos. 01-C-121, 02-C-366, 2002 WL 34127471

(E.D. Wis. May 30, 2002)....................00 13, 38, 65

Bethune-Hill v. Va. State Bd. of Elections,

STDP eee Bere anne 62

Bush v. Vera,

a canes s Seccanbenpnenenemennanls 28

Chapman v. Meier,

a canalial 10, 40

Cooper v. Harris,

gg Tg: Se 1, 6, 29

Crawford v. Marion Cnty. Election Bd.,

ls SI I ic nruicnd nscbddnesednernssncsedesoncailt 60

Davis v. Bandemer,

BF ele Be Cr csosctvecreccssiessvcsessnccensssease passim

Gaffney v. Cummings,

412 U.S. 735 (1978) .c0-cc0.cccocececesceseseseseees 51, 61, 63

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

tt Be Rt oe 60

Jimenez v. Hidalgo Cty. Water Improvement Dist.

No. 2,

GBA TB. CBD CID vss sevnssiciasccocicesennictencssaiecnen 53

League of United Latin Am. Citizens v. Perry,

ts S| Ee passim

Lujan v. Defs. of Wildlife,

gle Se eee passim

Marston v. Lewis,

GED CB.. GPO Car vetecicnicccstmeitiondsanaee 31

Moses H. Cone Mem'l Hosp. v. Mercury Constr.

Corp.,

Atk Sat) | =—_ ee 27, 60

Nautilus, Inc. v. Biosig Instruments, Inc.,

be Be es | er 57

Pena-Rodriguez v. Colorado,

tg Bs e.g, CEM ROrE eS mr 62

Prosser v. Elections Bd.,

793 F. Supp. 859 (W.D. Wis. 1992) .................... 13

Republican Party of Wis. v. Elections Bd.,

585 F. Supp. 603 (E.D. Wis. 1984) ..................... 12

Reynolds v. Sims,

is ccennennninebbonsocones 47

Schlesinger v. Reservists Comm. to Stop the War,

a cnnenbunenssoonente 27

Shapiro v. McManus,

203 F. Supp. 3d 579 (D. Md. 2016)................000. 34

Shaw v. Reno,

EE MEY CE csciccecceccscoccoccecssscecosecsooves 28, 61

Steel Co. v. Citizens for Better Env’'t,

a 33

United States v. Hays,

Le 29, 30, 31

United States v. Jacobsen,

LT 2°, 60

Vieth v. Jubelirer,

I I ss same snenenconenonces passim

Wis. Elections Bd. v. Republican Party of Wis.,

a sceenecsnonoosnces 12

Wis. ex rel. Attorney Gen. v. Cunningham,

EG HE EE, BIE cncccccsenccsocensscscss covecoeseese 12

Wis. ex rel. Lamb v. Cunningham,

I a cca cccecnsrcenconscccesses 12

vill

Wis. ex rel. Reynolds v. Zimmerman,

128 N.W.2d 16 (Wis. 1964) .................0ccc ccc ccc eee 12

Wis. State AFL-CIO v. Elections Bd..,

543 F. Supp. 630 (E.D. Wis. 1982) ..................... 12

Zivotofsky ex rel. Zivotofsky v. Clinton,

EE EE Caner 34

Constitutions

ee ceeseiasnaneeinianeann 5

a RP I TD a seanpahecnsbeeweebennbens 5

TN I MIE, SI To scicersicncindanladhipdunemoanebemmniiaieies 10

ar I I SI oi a iecnpapegnmmendiamiigatein’ 10

ee aT acisidibccetericinsieiscigaeemnintendiintilimtg itis 10

Statutes and Rules

Ee PID CRU GO vcccicsccnsnecscncesenecesccncnonsets passim

eae

Act of April 20, 1836, ch. 54, 5 Stat. 10...........00.0.0... 11

NCE INT INS Till hncedictatonicinntiiiniisbetntcbeniavntemnctiodanieepaiiins 41

RN IIIT icssscnesisnetonisuinnsitsnssintiaimenebsaatidipandniaite 11

Other Authorities

37 Ohio Archaeological and Historical

IND CIID cccsccncccococcccncscoccescecsccsccceccecscones 9

A Horrible Democratic Plot, Daily Milwaukee

ee 10, 11

Brief of Amici Curiae Profs. Gary King et al.,

League of United Latin Am. Voters v. Perry,

548 U.S. 399 (2006) (Nos. 05-204, 05-254, 05-

276, 05-439), 2006 WL 53994............ 43, 44, 47, 48

Daily Ohio St. J. (Columbus, August

XS DS er Ie Ce sete ne Ie 9,61

Daniel D. Polsby & Robert D. Popper, The Third

Criterion: Compactness as a Procedural

Safeguard Against Partisan Gerrymandering,

9 Yale L. & Pol’y Rev. 301 (1991)...................002. 61

Democratic Gains in Indiana, The Age:

Philadelphia (May 22, 1868) .................cccccccceeeee 10

Edward B. Foley, Due Process, Fair Play, and

Excessive Partisanship: A New Principle for

Judicial Review of Election Laws,

84 U. Chi. L. Rev. 655 (2017) ................... 6, 38, 61

Edward B. Foley, The Gerrymander and the

Constitution: Two Avenues of Analysis and the

Quest for a Durable Precedent,

Ohio St. U. Moritz C. L. Pub. L. & Legal

Theory Working Paper Series No. 401 (July

ee taiicciaeaibenediotiicidinchsieiiliaactpeiahddladsbiainnasaalin 34, 37

Elmer C. Griffith, The Rise And Development Of

The Gerrymander (1907) ...............ccceeeeeseeees passim

Erik J. Engstrom, Partisan Gerrymandering and

the Construction of American Democracy

RE eS SN EE a AE a wer 6, 7, 8, 10

Five Democratic Congressmen, New Harmony

A EES ESE ee eee ae 10

How the Radical Majority in Congress is

Manufactured, Rockingham Reg. and Va.

pO ee 10

James T. Austin, The Life of Elbridge Gerry

TTT ideichcictaiuttpsRiieicaancib ies ethieiaitainatihetibdinanoiiatnisepgiiteneri 8

Jenni Salamon, Ohio’s 1842 Election:

Absquatulators vs. Gerrymanderers, Ohio

I in cncsicinteniscsbiinndslnisienimnes 8, 9

Jerrold G. Rusk, A Statistical History of the

American Electorate (2001) .............cccccccceeeeceeeeeees 8

John Russell Bartlett, Dictionary of

Americanisms 248 (4th ed. 1877) ..........cccccccceeeeees 5

Jowei Chen & Jonathan Rodden, Unintentional

Gerrymandering: Political Geography and

Electoral Bias in Legislatures,

. 2 & 5 soca 51

Library of Congress, Essex County; Worcester

Mass. Historical Soc’y, The Gerry-Mander. A new

species of Monster which appeared in Essex

Re BS GID IE BIE cnctctccccccecesccnsesscescoceeess 7

Michael Keane, Redistricting in Wisconsin (April

Ti niscisncpinuniegimmbnintemeineineeneiniinieienanan 11, 12

Nat'l Conference of State Legislatures,

Redistricting Law 2010, November 2009........... 38

Nicholas O. Stephanopoulos & Eric M. McGhee,

Partisan Gerrymandering And The Efficiency

Gap,

82 U. Chi. L. Rev. 831 (20185) ....................... 17, 48

Peter Schuck, Partisan Gerrymandering: A

Political Problem Without Judicial Solution,

in Political Gerrymandering and the Courts

240 (B. Grofman ed., 1990)..................cccccesseeenees 39

The Gerry-Mander, or Essex South District

Formed Into A Monster!, Salem Gazette, April

William A. Craigie and James R. Hulbert,

2 A Dictionary of American English (1940)......... 5

Wisconsin, Waukesha Plaindealer

4 SRE ea re 11

INTRODUCTION

A divided three-judge district court became the

first court in decades to invalidate a redistricting plan

on partisan-gerrymandering grounds. The plan that

the court struck down—Act 43—complies with tradi-

tional redistricting principles and does not meaning-

fully differ from the immediately prior, court-drawn

map in terms of election outcomes. As the dissent be-

low explained, the only way that Wisconsin Republi-

cans could have achieved Plaintiffs’ desired partisan

results would have been to “engage in heroic levels of

nonpartisan statesmanship,” purposefully abandon-

ing their advantage under the court-drawn plan. J.5S.

App. 245a.

While Plaintiffs in their Motion to Affirm before

this Court did not defend the district court’s core rea-

soning, they continued to argue that Act 43 is unlaw-

ful because the Legislature engaged in too much

partisanship. But “[pljartisan gerrymandering dates

back to the founding.” Cooper v. Harris, 137 S. Ct.

1455, 1488 (2017) (Alito, J., concurring in the judg-

ment in part and dissenting in part). Although “some

might find [this practice] distasteful, [this Court’s]

prior decisions have made clear that a jurisdiction

may engage in constitutional political gerrymander-

ing.” Jd. (citation omitted). Plaintiffs seek to overturn

this centuries-old status quo, thereby “commit|ting]

federal and state courts to unprecedented interven-

tion in the American political process.” Vieth v. Ju-

belirer, 541 U.S. 267, 306 (2004) (Kennedy, J.,

concurring in the judgment). Plaintiffs seek to impose

this change without identifying any historically

grounded “comprehensive and neutral principles,” id.

at 306-08, and while simply repeating arguments

that this Court has already rejected.

The massive “intervention” that Plaintiffs urge

this Court to authorize is “unprecedented.” Jd. at 306.

Under the approach they advocated in their Motion to

Affirm, whenever a politically minded body draws

electoral boundaries—whether for House of Repre-

sentatives seats, the state legislature, or a local water

district—any displeased voter in the State (even one

living in a district not altered by the new map) can file

a lawsuit in federal court, seeking invalidation of the

entire map. In that lawsuit, the plaintiff would need

only rely upon one or more of any number of develop-

ing “social science” metrics, ranging from the “effi-

ciency gap” to “mean-median difference” calculations

to “sensitivity testing” to as-yet unidentified theo-

rems. See Mot. to Affirm 10, 12 n.4, 21 n.8. The dis-

trict court would then compare the outputs of these

cherry-picked metric(s) with the outputs of whatever

metric(s) the defendants favored and then (somehow)

decide, in the name of the Constitution, whether there

has been “too much” partisanship. See League of

United Latin Am. Citizens v. Perry (LULAC), 548 U.S.

399, 420 (2006) (plurality op.). This Court was not

impressed with a virtually identical multi-metric ar-

gument in LULAC, when that argument was pre-

sented by certain law professors in an amicus

brief. Id.

Notably, under the metric that Plaintiffs favored

below, one out of every three legislative maps over the

last 45 years would have had too much partisan effect.

And this actually understates the breadth of what

Plaintiffs urge this Court to adopt, as other plaintiffs

could attack the remaining maps simply by relying

upon other academic formulas thought to “exploit re-

cent conceptual and methodological advances in the

social sciences.” Mot. to Affirm 21.

Plaintiffs’ approach is thus not “limited and pre-

cise” under any reasonable understanding of that

standard, meaning that Defendants are entitled to

judgment. See Vieth, 541 U.S. at 306 (Kennedy, J.,

concurring in the judgment). More generally, that

Plaintiffs can offer nothing better than their social-

science hodgepodge aptly shows that the “weighty ar-

guments for holding cases like these to be nonjustici-

able” have now “prevailfed].” Jd. at 309 (Kennedy, J.,

concurring in the judgment). It has been more than

three decades since Davis v. Bandemer, 478 U.S. 109

(1986), and yet no party or court has identified any

“comprehensive and neutral principles for drawing

electoral boundaries,” let alone a limited and precise

test to enforce those principles, see Vieth, 541 U.S. at

306—08 (Kennedy, J., concurring in the judgment).

Plaintiffs would also create an unthinkable imbal-

ance in this Court’s standing doctrine, making allega-

tions of partisan gerrymandering more legally

powerful than claims even of racial gerrymandering.

Plaintiffs based their standing on the assertion that a

voter living in any district in a State can challenge a

map on a statewide basis. That is contrary to this

Court’s racial-gerrymandering caselaw, which holds

that a voter can challenge only that voter’s own dis-

trict and cannot attack a map “as an undifferentiated

whole.” Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257, 1265 (2015) (citation omitted). The

result of Plaintiffs’ rejection of that principle in the

political context would be to favor partisanship-based

claims over race-based claims.

This Court should reverse the district court and

hold that Plaintiffs’ lawsuit must be dismissed.

OPINIONS BELOW

The opinion and order of the panel of the United

States District Court for the Western District of Wis-

consin, entered on November 21, 2016 (J.S. Appendix

A), are reported at 218 F. Supp. 3d 837. The district

court’s opinion and order permanently enjoining the

use of Act 43, entered on January 27, 2017 (J.S. Ap-

pendix B), are unreported, but are available at 2017

WL 383360. The district court’s judgment, entered on

January 27, 2017 (J.S. Appendix C), amended judg-

ment, entered on February 22, 2017 (J.S. Appendix

D), and corrected amended judgment, entered on

March 15, 2017 (J.S. Appendix E), are unreported.

JURISDICTION

Defendants filed their notice of appeal on Febru-

ary 24, 2017 (J.S. Appendix F), and their amended no-

tice of appeal on March 20, 2017 (J.S. Appendix H).

This Court has statutory jurisdiction to consider this

appeal under 28 U.S.C. § 1253. However, as ex-

plained below, the federal courts lack jurisdiction over

Plaintiffs’ lawsuit. See infra Argument Part I.

CONSTITUTIONAL PROVISIONS INVOLVED

This appeal involves the First Amendment and

the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution, repro-

duced at J.S. App. 345a—47a.

STATEMENT

A. Political Gerrymandering In Early Ameri-

can History

As historically understood, a partisan gerryman-

der is a map drawn “without any apparent regard to

[the] convenience or propriety” of the districts, John

Russell Bartlett, Dictionary of Americanisms 248 (4th

ed. 1877), creating “irregularly shaped election dis-

trict[s]” for partisan advantage, William A. Craigie

and James R. Hulbert, 2 A Dictionary of American

English 1114—15 (1940) (citing 1816 source material);

accord The Gerry-Mander, or Essex South District

Formed Into A Monster!, Salem Gazette (April 2,

1813) (first public use of “gerrymander’”);' see gener-

ally Edward B. Foley, Due Process, Fair Play, and Ex-

cessive Partisanship: A New Principle for Judicial

Review of Election Laws, 84 U. Chi. L. Rev. 655, 710—

21 (2017). This practice “dates back to the founding.”

Cooper, 137 S. Ct. at 1488 (Alito, J., concurring in the

judgment in part and dissenting in part); accord

Elmer C. Griffith, The Rise And Development Of The

Gerrymander 26 (1907); Erik J. Engstrom, Partisan

Gerrymandering and the Construction of American

Democracy 21—22 (2013).

In the 1789 redistricting of the New York Legisla-

ture, for example, the Federalist Party “unnecessarily

divided a county by lopping off [ ] towns” into different

districts to “secur[e] to their party the control of the

new government | ] provided for” in the federal Con-

stitution. Griffith, supra, at 42-43. The Legislature

also engaged in similar tactics in 1801, 1802, 1804,

1808 (with some districts that year not even con-

nected), and again in 1812. Jd. at 56—61, 77-79.

In 1812, Massachusetts Democratic-Republicans

completed the “notoriously outrageous political dis-

tricting” from which gerrymandering received its

name. Vieth, 541 U.S. at 274—75 (plurality op.). This

plan created districts of “fantastic shapes,” “sepa-

rat[ing]” some towns and “isolat[ing]” others from

1 Available at https://digital.library.cornell.edu/catalog/

ss:3293783.

“their proper counties” to boost Democratic-Republi-

can political fortunes. Griffith, supra, at 16—17;

Engstrom, supra, at 39. The “most distorted contour”

was “[t]he outer district of Essex county.” Griffith, su-

pra, at 17. Someone “proposed the term salamander”

for the figure, which was then combined with the last

name of Massachusetts Governor Elbridge Gerry,

who “had allowed the [redistricting] bill to become a

law,” to create the portmanteau “gerrymander.” Grif-

fith, supra, 17.2

‘-«

ee ee

b: Se ee ee

2 Images available at: Library of Congress, Essex County;

Worcester County, https://www.loc.gov/item/95683218; Mass.

Historical Soc’y, The Gerry-Mander. A new species of Monster

which appeared in Essex South District in Jan. 1812,

http://www.masshist.org/database/1765.

After the enactment of this map, the “Federalists

{still] won 80 percent of the House seats in the 1812

election and recaptured control of the state legisla-

ture.” Engstrom, supra, at 39; Jerrold G. Rusk, A Sta-

tistical History of the American Electorate 235 (2001).

After Governor Gerry himself lost, James T. Austin,

The Life of Elbridge Gerry 377—78 (1829), “the new

Federalist majority [then] set about remapping [Mas-

sachusetts’s] congressional districts to further en-

hance the prospects of Federalist congressional

candidates in the 1814 election.” Engstrom, supra, at

39.

In 1842, Ohio Democrats introduced a gerryman-

dered redistricting plan in a special legislative ses-

sion. Griffith, supra, at 118; Jenni Salamon, Ohio’s

1842 Election: Absquatulators vs. Gerrymanderers,

Ohio Memory, Sept. 6, 2013.4 The plan “grouped

counties along the Ohio river in the coal region in a

partisan manner,” which became known to the public

3 Available at http://www.ohiohistoryhost.org/ohiomemory/

archives/1333.

through a local paper publishing cartoons in the spirit

of the “original” gerrymander, Griffith, supra, at 118:4

THES GURZYMAW DER

Whig representatives absconded to defeat a quorum

and published a defense of their actions in their party

newspaper, along with a critique of the gerrymander:

“It needs only a glance at the map to see how far con-

tiguity of territory has been regarded in the formation

of this bill. It has not only not been regarded; it has

been most grossly disregarded.” Daily Ohio St. J. (Co-

lumbus, August 12, 1842);5 Salamon, supra. While

they prevented enactment of the plan, the Whigs lost

at the polls. Salamon, supra. Ohio “has since been

very frequently and effectively gerrymandered.” Grif-

fith, supra, at 118.

* Image available at: 37 Ohio Archaeological and Historical

Publications 528 (1928) (reproduction of a newspaper),

https://archive.org/stream/ohioarchologic3 7ohio#page/n547/

mode/2up.

6 Available at http://www.ohiomemory.org/cdm/fullbrows

er/collection/p 16007coll22/id/1 75 1 3/rv/compoundob-

ject/cpd/17516.

In 1852, the Democratic Party of Indiana “carved

the state into a remarkable 10 (out of 11) Democratic

districts despite only garnering 53 [or 54] percent of

the statewide vote.” Engstrom, supra, at 9,105. The

following election, however, Democrats’ vote share

dropped to 46%, resulting in a win of only two districts

due to the thin margins built into the gerrymandered

map. See id. at 120-21.

Similar practices continued in the post—Civil War

era. See generally Engstrom, supra, at 9, 89. Penn-

sylvania Republicans gerrymandered in 1866. How

the Radical Majority in Congress is Manufactured,

Rockingham Reg. & Va. Advertiser, Nov. 1, 1866. In-

diana Radical Republicans engaged in an “unblushing

gerrymander” in 1868. Five Democratic Congress-

men, New Harmony Reg., Oct. 24, 1868; Democratic

Gains in Indiana, The Age: Philadelphia (May 22,

1868). And prior to the 1870 elections, Ohio Republi-

cans engaged in “a scheme to gerrymander the

state.” A Horrible Democratic Plot, Daily Milwaukee

News, March 17, 1869.

B. Wisconsin’s General Assembly, From Wis-

consin’s Founding To Act 43

1. Wisconsin assigns to the Legislature the re-

sponsibility for creating the State’s voting districts,

subject to certain controlling principles. Wis. Const.

art. [V, §§ 3—5; accord Chapman v. Meier, 420 U.S. 1,

27 (1975) (“reapportionment is primarily the duty and

responsibility of the State through its legislature or

other body, rather than of a federal court”). The Act

creating the Wisconsin Territory provided for the elec-

tion to both houses of the territorial legislature from

multi-member districts. See Act of April 20, 1836, ch.

54, 5 Stat. 10, § 4. The Wisconsin Constitution jetti-

soned the multi-member regime, requiring single-dis-

trict elections. Wis. Const. art. IV, § 4. Each district

must “be bounded by county, precinct, town or ward

lines, to consist of contiguous territory and be as com-

pact in form as practicable.” Jd. The districts of the

upper house, the State Senate (not at issue here),

must be “composed of 3 assembly districts,” Wis. Stat.

§ 4.001, and “no assembly district shall be divided in

the formation of a senate district,” Wis. Const. art. IV,

§ 5. Assembly districts must also be equal in popula-

tion. See Wis. Const. art. IV, § 3.

The Wisconsin Legislature engaged in partisan

gerrymandering early in the State’s history. See A

Horrible Democratic Plot, supra; Wisconsin,

Waukesha Plaindealer (Nov. 26, 1867). In 1868, the

“(Rjepublican legislature” “gerrymandered” the con-

gressional districts to ensure that 5 of 6 Wisconsin

House of Representative members were Republi-

cans. Jd. When Democrats gained control of the As-

sembly, they employed similar measures. In the early

1890s, after Wisconsinites elected a Democratic Gov-

ernor and Democratic majorities in the Assembly and

Senate, Democrats used their newly won power to

fracture 15 Assembly districts and split 20 counties

for partisan gain. Michael Keane, Redistricting in

Wisconsin 7 (April 1, 2016). The Wisconsin Supreme

Court invalidated the plans on _§state-law

grounds. See generally Wis. ex rel. Attorney Gen. v.

Cunningham, 51 N.W. 724 (Wis. 1892); Wis. ex rel.

Lamb v. Cunningham, 53 N.W. 35 (Wis. 1892). The

Legislature then rushed a redistricting plan into ef-

fect 12 days before the election, under which Republi-

cans soon retook the Legislature. Keane, supra, at 7.

From the 1960s through the 1990s, Wisconsin’s

political branches often failed to agree on districting

maps, thereby forcing federal courts to draw Assem-

bly maps. Following this Court’s decision in Baker v.

Carr, 369 U.S. 186 (1962), the Wisconsin Supreme

Court drew the State’s legislative districts after the

Legislature and Governor were unable to agree on a

plan. Wis. ex rel. Reynolds v. Zimmerman, 128

N.W.2d 16 (Wis. 1964). After the 1970 census, Wis-

consin’s political branches reapportioned the Assem-

bly districts. Wis. State AFL-CIO v. Elections Bd., 543

F. Supp. 630, 631 (E.D. Wis. 1982). Following the

1980 census, a federal district court drafted its own

redistricting plan after the Governor vetoed the Leg-

islature’s proposed plan. Jd. at 632, 638-39. When

Democrats won the Governor’s office in the 1982 elec-

tion, the Democratic Legislature and Governor passed

new Assembly districts, which were in force through

the end of the decade after temporarily being stayed

by the courts. See Republican Party of Wis. v. Elec-

tions Bd., 585 F. Supp. 603, 604 (E.D. Wis. 1984), va-

cated sub nom. Wis. Elections Bd. v. Republican Party

of Wis., 469 U.S. 1081 (1984); JA209-10. Federal

courts again drew Wisconsin’s Assembly districts for

the 1990s, after the Republican governor vetoed the

Democratic Legislature’s plan. Prosser v. Elections

Bd., 793 F. Supp. 859, 862, 871 (W.D. Wis. 1992).

Following the 2000 census, a federal court again

drew Assembly districts due to split control of the two

houses of the Legislature. See Baumgart v. Wendel-

berger, Nos. 01-C-121, 02-C-366, 2002 WL 34127471,

at *1 (E.D. Wis. May 30, 2002). The court drew its

plan “in the most neutral way it could conceive—by

taking the 1992 plan as a template and adjusting it

for population deviations.” Jd. at *7. The two-party

election results under the 2002 plan were as follows:

, Republican Republican

Election Year Vote Share Rent

2002 50.50% 58

— 2004 50.00% 60

2006 45.25% 52S

2008 46.00% 46

2010 53.50% 60

See JA219—20, 223-24.

2. The Legislature drew the map at issue here—

2011 Wisconsin Act 43 (“Act 43”)—after Republicans

won control of the Legislature and Governorship in

the 2010 election. JA248.

The Legislature assigned primary drafting re-

sponsibility to two legislative staffers and a former

legislator. Dkt. 125 4% 17—20; Dkt. 119-8; Dkt.

147:46. Professor Ronald Keith Gaddie and retained

lawyers assisted in this process. Dkt. 125 44] 19—20;

Dkt. 147:152—53. The staffers focused on creating

various draft maps that complied with the Voting

Rights Act (VRA), equal-population requirements,

and traditional districting principles, while also tak-

ing politics into account. Dkt. 147:152—62; Dkt.

148:83—86. The goal was to create proposed regional

alternatives for the Legislative leadership to consider.

Dkt. 147:162—65; Dkt. 148:94—98.

To comply with the VRA, the staffers paid special

attention to Milwaukee’s Assembly districts. Dkt.

147:152—53; Dkt. 148:75—76. After Professor Gaddie

and the lawyers had signed off on the Milwaukee dis-

tricts, the staffers “locked these districts” and then

worked on maps of other areas of the State. Dkt.

148:77—78.®

Having locked in the Milwaukee-area districts,

the staffers then drew various draft maps that com-

plied with equal-population requirements, traditional

redistricting principles, and state laws. Dkt.

147:153—57; Dkt. 148:83-86. The staffers drafted

maps that were compact and contiguous by drawing

“reasonably configured” districts, sought to avoid

pairing incumbents, and tried to minimize delayed

voting, also called “disenfranchisement,” of voters

6 A district court later rejected most challenges to Act 43,

except for one under the VRA. See Baldus v. Members of Wis.

Gov't Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012)

(per curiam).

shifted between Senaie districts. Dkt. 148:83—86;

Dkt. 147:155—59.

The staffers also considered the political implica-

tions of their various draft maps, using a tool they

called the “composite score.” This score is a snapshot

of the partisan preferences of Assembly district vot-

ers, derived from averaging statewide races from

2004 through 2010 (President, U.S. Senate, Governor,

Attorney General, Treasurer, and Secretary of State).

Dkt. 147:121-29. This score did not purport to pro-

ject, with any degree of precision, future Assembly

elections; as an average of statewide races, it took no

account of incumbency, candidate strength, or other

Assembly-district-specific factors.

After completing their VRA, population-equality,

traditional-redistricting-principles, and _ political

analyses for their draft maps, the staffers presented

portions of their various draft maps, by region, to leg-

islative leadership, who then selected the preferred

approach for each region. Dkt. 147:162—65; Dkt.

148:94-99. The drafters combined these regions into

a single map, and then legislative leadership and one

of the staffers met with each Republican member of

the Assembly to discuss their district. Dkt. 147:165—

68; Dkt. 148:101—-02. The Legislature then adopted

the map, after some minor adjustments, as Act 43.

See Dkt. 148:110—17. As discussed in more detail be-

low, see infra pp. 56—58, the district court drew a sig-

nificant negative inference from the fact that, under

Dr. Gaddie’s swing analysis of Act 43, Democrats

were projected to win a majority of seats only after

they managed to win more than 53% of the statewide

Assembly vote (a vote total that they had achieved in

two of the three elections leading up to Act 43). See

J.S. App. 149a—50a & n.257; JA223—24.

Act 43 is generally consistent with the 2002 court-

drawn map in terms of compactness, municipal splits,

and population equality. Act 43’s compactness scores

are comparable to the 2002 court-drawn plan: Act 43

had a smallest-circle score of 0.39 and a perimeter-to-

area score of 0.28, whereas the 2002 court-drawn plan

had a smallest-circle score of 0.41 and a perimeter-to-

area score of 0.29.7 JA214~—15. Act 43 split 62 munic-

ipalities, compared to 50 splits in the 2002 plan.

JA215—-16. Act 43 had better population equality

than the 2002 court-drawn map, with a deviation of

0.76% under Act 43, compared to 1.59% under the

2002 plan. JA212-13. Further, Act 43 avoided in-

cumbent pairings where possible, with 22 total legis-

lators paired, split evenly between Republicans and

Democrats. Dkt. 148:87.

7 The “perimeter-to-area score, which compares the relative

length of the perimeter of a district to its area, and the smallest

circle score, which compares the ratio of space in the district to

the space in the smallest circle that could encompass the dis-

trict,” are the “two standard measures of compactness.” LULAC,

548 U.S. at 455 n.2 (2006) (Stevens, J., concurring in part, dis-

senting in part).

Two elections occurred under Act 43 before Plain-

tiffs filed their lawsuit. In the 2012 elections, Repub-

licans won 60 out of 99 seats in the Assembly with

48.6% of the statewide two-party vote. See JA219—20,

224. In the 2014 elections, the Republicans won 63 of

99 seats in the State Assembly with 52% of the

statewide two-party vote. See JA219—20, 224.

C. Procedural Background

1. In July 2015, Plaintiffs filed a complaint in the

Western District of Wisconsin, alleging that Act 43 vi-

olated the First and Fourteenth Amendments. JA25—

65. Plaintiffs are 12 individual voters from 11 of the

State’s 99 Assembly districts. JA153—55. Their com-

plaint rested upon “a new test,” the so-called “effi-

ciency gap.” JA28~-29 (emphasis omitted). This is a

concept recently developed by a professor (co-counsel

for Plaintiffs) and a research fellow in a law-review

article. See Nicholas O. Stephanopoulos & Eric M.

McGhee, Partisan Gerrymandering And The Effi-

ciency Gap, 82 U. Chi. L. Rev. 831 (2015). The theory

assumes all votes cast for a winning candidate above

those needed for victory are “wasted” votes that show

“packing,” while all votes cast for losing candidates

are wasted votes that show “cracking.” JA28—29.

Plaintiffs contended that a plan that exceeded a 7%

gap was unlawful unless the State could justify this

gap. JA58—60. The district court denied Defendants’

motion to dismiss this complaint, holding that “cur-

rent law does not foreclose plainciffs’ claims,” but did

not set out the legal standard to which discovery and

expert reports in the case should be tailored. JA102.

The district court thereafter rejected Defendants’

motion for summary judgment. In their motion, De-

fendants had argued, among other things, that the ef-

ficiency gap was not a lawful standard. Dkt. 46. In

response, Plaintiffs focused on how the efficiency gap

should form the basis of a legal test. Dkt. 68. Plain-

tiffs, however, obliquely suggested that “the Court

could require a different measure of partisan sym-

metry, such as partisan bias, to be used instead of or

in addition to the efficiency gap.” Dkt. 68:48. Nota-

bly, Plaintiffs disclaimed reliance on “minority party

entrenchment” as foreclosed by this Court’s prece-

dent. Dkt. 68:56. In their reply, Defendants strenu-

ously objected to Plaintiffs’ request that the district

court “develop a standard not put forward by the

plaintiffs to date” because Defendants would have no

opportunity to contest that yet-to-be developed stand-

ard. Dkt. 73:23. In denying Defendants’ summary

judgment motion, the district court concluded that

“there is a genuine dispute on the question whether a

large efficiency gap is a strong indicator of a discrim-

inatory effect,” but refused to explain whether Plain-

tiffs’ proposed efficiency-gap test would govern. Dkt.

94:15.

2. The trial took place in May 2016, with the focus

of the evidence and argument regarding Act 43’s al-

legedly partisan effects being on the efficiency gap.

Four fact witnesses testified first. William Whit-

ford, the lead plaintiff, admitted that Act 43 had not

affected his ability to elect a Democratic representa-

tive, but complained that Act 43 harmed his “ability

to engage in campaign activity to achieve a majority.”

Dkt. 147:36—37. The two legislative staffers and Gad-

die (via videotaped deposition) testified about creat-

ing Act 43. Dkt. 147:40—203; Dkt. 148:5—133.

Plaintiffs offered two expert witnesses, Professors

Kenneth Mayer and Simon Jackman, who focused

their testimony largely on the efficiency gap. Dkt.

148:136—295; Dkt. 149:5-141, 143-291. Mayer calcu-

lated an efficiency gap of 11.69% for Act 43 in 2012,

but did not calculate a gap for 2014. See Pls. Ex. 2, at

45, 54, Dkt. 147:7-—8, Dkt. 148:136—-37. Mayer also

testified about his Demonstration Plan, an alterna-

tive plan specifically designed to produce a lesser effi-

ciency gap. See Dkt. 148:143. Mayer briefly testified

about his “uniform swing analysis,” Dkt. 149:92—93,

discussed in more detail below, see infra p. 58. Pro-

fessor Jackman, in turn, testified about his analysis

of the efficiency gaps seen in 41 States’ legislative

elections from 1972 to the present. See J.S. App. 48a,

163a; Dkt. 149:149-52. In Jackman’s analysis, 34%

of plans had an efficiency gap over 7% in their first

election and 16% had an initial efficiency gap over

10%. JA193. Jackman’s analysis showed a sharp

turn in the efficiency gap in Republicans’ favor start-

ing in the 1990s, including in Wisconsin. Dkt.

149:250—54; Pls. Ex. 34, at 45, Dkt. 147:7—8, Dkt.

149:148.

Defendants offered Sean Trende and Professor

Nicholas Goedert as expert witnesses, who also fo-

cused largely on the efficiency gap. Dkt. 150:5—-143,

144-252. Trende testified that the efficiency gap was

flawed for numerous reasons, including because it

fails to account for Wisconsin’s political geography fa-

voring Republicans. See Dkt. 150:66—70, 74-86. Pro-

fessor Goedert explained that the efficiency gap would

improperly codify a hyper-proportional relationship

between seats and votes. Dkt. 150:144, 169—70.

3. On November 21, 2016, a divided three-judge

district court invalidated Act 43. J.S. App. la—315a.

The majority adopted a three-part legal standard

based upon a discriminatory intent, discriminatory

effects, and justification inquiry, built around the con-

cept of entrenchment. J.S. App. 3a—4a, 109a~—10a.

The court also held that Plaintiffs had standing to

challenge Act 43 on a statewide basis. J.S. App. 219a—

22a.

The majority ultimately held that Act 43 was un-

lawful under its newly announced test. On discrimi-

natory intent, the court concluded that “an intent to

entrench a political party in power signals an exces-

sive injection of politics into the redistricting process,”

J.S. App. 117a (emphasis added). Given that Act 43

was drawn by a Republican legislature, this test was

easily satisfied. J.S. App. 126a—45a. As to partisan

effect, the Court held that Act 43 was unlawful be-

cause “it secured for Republicans a lasting Assembly

majority”; that is, the district court found impermis-

sible effect based upon entrenchment. J.S. App. 145a.

The district court reached this conclusion by looking

primarily to “the swing analyses performed by Profes-

sors Gaddie and Mayer.” J.S. App. 145a—46a. As to

the efficiency gap, the district court rejected Plain-

tiffs’ core request to make this the definitive effects

test, but held that Act 43’s efficiency gaps “bolstered”

the court’s partisan effect holding. J.S. App. 159a. Fi-

nally, having found the first two elements of its test

met, the court held that Act 43’s political results could

not be “justified” based on its compliance with tradi-

tional redistricting principles or by Wisconsin’s polit-

ical geography. J.S. App. 177a—218a.

Judge Griesbach dissented, explaining that,

among many other defects, the majority's approach

required Republicans “to engage in heroic levels of

nonpartisan statesmanship,” drawing the new map to

neutralize their advantage under the 2002 court-

drawn plan. J.S. App. 245a—46a. The dissent further

objected to invalidating Act 43 because, as all the par-

ties and the court agreed, “Act 43 does not violate any

of the redistricting principles that traditionally gov-

ern the districting process.” J.S. App. 250a—51la.

4, On January 27, 2017, the district court enjoined

Defendants from using Act 43 and ordered that a new

plan be adopted by November 1, 2017. App. 323a. On

June 19, 2017, this Court granted Defendants’ appli-

cation for a stay, and agreed to hear the case on the

merits, while postponing consideration of jurisdiction.

SUMMARY OF ARGUMENT

I. As a majority of the Justices of this Court con-

cluded in Vieth, federal courts lack jurisdiction to ad-

judicate statewide political-gerrymandering claims.

See 541 U.S. at 305-06 (plurality op.); id. at 327-28

(Stevens, J., dissenting). These Justices were correct

on both standing and justiciability grounds.

A. Plaintiffs, individual voters in 11 of Wiscon-

sin’s Assembly districts, lack standing to challenge

Act 43 on a statewide basis because they could only

possibly suffer concrete, particularized harm in their

specific districts. Even in a racial-gerrymandering

case, a plaintiff only has standing to challenge the

plaintiff's own district, not the entire map “as an un-

differentiated whole.” Ala. Legislative Black Caucus,

135 S. Ct. at 1265-66. This rationale applies directly

to political-gerrymandering claims. A Wisconsin

voter like the lead plaintiff in this case only has a con-

crete and particularized interest in the district where

he lives and votes. He has no standing to challenge

other Wisconsin Assembly districts or other House of

Representatives districts (including districts in other

States), on the theory that he wants more Democrats

for his Assembly or House member to caucus with.

A contrary conclusion would lead to an unthinka-

ble and perverse loophole in this Court’s standing doc-

trine. Given that plaintiffs may not bring statewide

racial-gerrymandering claims, see Ala. Legislative

Black Caucus, 135 S. Ct. at 1265—66, permitting such

claims in the political-gerrymandering context would

favor politics-based claims over allegations that the

legislature acted with improper racial motives.

B. Plaintiffs’ statewide claims also present a non-

justiciable political question. In Vieth, a majority of

this Court either definitively concluded that such

claims were nonjusticiable, 541 U.S. at 305—06 (plu-

rality op.), or could eventually prove to be so, id. at

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

last three decades of fruitless litigation demonstrate

that there are no judicially discernible standards in

this area of law. The only theory that Plaintiffs pre-

sented below—so-called partisan symmetry—is not a

“comprehensive and neutral principle[ ]” of district-

ing, derived from “the annals of parliamentary or leg-

islative bodies.” Jd. at 306-08 (Kennedy, J.,

concurring in the judgment). Partisan symmetry is

simply a species of proportional representation, for

which there is “no [constitutional] authority,” id. at

308, and which has no historical or even present-day

support in districting practice.

II. Even if this Court concludes that the district

court had jurisdiction to consider Plaintiffs’ claiias,

Plaintiffs have not stated a claim on which relief can

be granted because they have not articulated a “lim-

ited and precise” standard. Vieth, 541 U.S. at 306

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

The theory that Plaintiffs proposed in their Mo-

tion to Affirm is the opposite of limited and precise.

That theory identifies partisan effect based upon a

brew of “partisan asymmetry” and “partisan bias,” the

efficiency gap, “mean-median difference” calculations,

“sensitivity testing,” and more. Mot. to Affirm 10, 12

n.4, 21 & n.8. Plaintiffs borrowed this approach from

an amicus brief filed by law professors before this

Court in LULAC, even though a plurality of this

Court explained that this approach failed to articulate

a “reliable measure of fairness.” 548 U.S. at 419-20.

The test that Plaintiffs proposed before the dis-

trict court, but have now abandoned on appeal, is no

more defensible. Under that proposal, a map would

have an impermissible partisan effect if it had an ef-

ficiency gap of more than 7% in its first election. This

boils down to yet another baseless request for propor-

tional representation; indeed, hyperproportionalism,

as the efficiency gap metric assumes that “for every

percentage point increasing in vote, you'll get a 2 per-

centage point increase in seat share.” Dkt. 149:188.

The efficiency gap also suffers from additional fatal

flaws, including that it would find that one out of

every three legislative maps drawn in the last 45

years has impermissible partisan effect (while, at the

same time, systematically overlooking partisanship-

driven plans drawn by Democrats).

The district court took a different tact, finding

that Act 43 had an impermissible partisan effect be-

cause it allegedly “secured for Republicans a lasting

Assembly majority” throughout the decade. J.S. App.

145a. As Plaintiffs conceded below, see Dkt. 68:56,

this approach is foreclosed by Vieth. Given Plaintiffs’

concession below, the entrenchment issue was not

fairly litigated at trial. Accordingly, if this Court were

to hold that entrenchment plays any part in a parti-

san-gerrymandering test, Defendants respectfully

submit that a remand to permit the parties to litigate

this issue would be appropriate.

Ill. Plaintiffs’ lawsuit also fails because Act 43

complies with traditional redistricting principles and

is otherwise unremarkable. A majority of Justices in

Vieth who would even permit adjudication of parti-

san-gerrymandering claims would require the plain-

tiff to show as an element of the claim that the

legislature did not comply with these neutral princi-

ples. See 541 U.S. at 318 (Stevens, J., dissenting); id.

at 347—48 (Souter, J., joined by Ginsburg, J., dissent-

ing). Here, it was undisputed below that Act 43 com-

plies with these principles, meaning that Plaintiffs’

lawsuit fails for this reason alone. At the very mini-

mum, Act 43 is lawful because the Legislature consid-

ered political implications as only one of many

legitimate factors, including traditional redistricting

principles, and because Act 43’s results are generally

comparable to those that obtained under the immedi-

ately prior court-drawn map.

ARGUMENT

L The District Court Lacked Jurisdiction

A majority of this Court in Vieth concluded that

federal courts lack jurisdiction to adjudicate

statewide political-gerrymandering claims. A four-

Justice plurality determined that all political-gerry-

mandering claims were nonjusticiable. 541 U.S. at

305—06 (plurality op.). Justice Stevens, in turn, con-

cluded that the plaintiffs in the case had no standing

to bring their statewide partisan-gerrymandering

claims because they would not have standing to bring

a statewide racial-gerrymandering claim. See id. at

327—28 (Stevens, J., dissenting). As the plurality cor-

rectly explained, Justice Stevens “concur[red] in the

judgment that [the Court] should not address plain-

tiffs’ statewide political gerrymandering challenges.”

Id. at 292 (plurality op.). Although Justice Stevens

“reache[d] that result via standing analysis, while

[the plurality] reach[ed] it through political-question

analysis, [the] conclusions are the same: [ ] statewide

claims are nonjusticiable.” Jd. (plurality op.); see also

id. at 353 (Souter, J., dissenting) (“I would limit con-

sideration of a statewide claim to one built upon a

number of district-specific ones.”).

Given that a wnajority of this Court has already

concluded that federal courts have no jurisdiction to

adjudicate statewide partisanship-based claims, and

given that Plaintiffs here brought only statewide

claims, a straightforward application of this Court’s

precedent is sufficient to dispatch Plaintiffs’ lawsuit

in whole. See United States v. Jacobsen, 466 U.S. 109,

115-18 & n.12 (1984) (controlling holding derived

from a two-Justice plurality and four-Justice dissent);

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1, 17 (1983) (similar). After all, “either the

absence of standing or the presence of a political ques-

tion suffices to prevent the power of the federal judi-

ciary from being invoked.” Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 215 (1974).

Even if this Court wishes to consider these issues

anew, both Justice Stevens and the Vieth plurality

were correct in their respective conclusions: a plaintiff

lacks standing to bring a statewide partisan-gerry-

mandering claim, and partisan-gerrymandering

claims are nonjusticiable (at least when dealing with

statewide claims like those in Bandemer, Vieth, and

in the present case). Either conclusion requires dis-

missal of Plaintiffs’ lawsuit for lack of jurisdiction.

A. Plaintiffs Have No Standing To Bring

Their Statewide Claims

1. Federal courts have subject matter jurisdiction

only over cases where plaintiffs have standing. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60

(1992). For plaintiffs to have standing, each must

show: (1) an “injury in fact—an invasion of a legally

protected interest which is (a) concrete and particu-

larized,” in that it “affect[s] the plaintiff in a personal

and individual way” and “(b) actual or imminent”; (2)

a “causal connection between the injury and the con-

duct complained of”; and (3) a likelihood that “the in-

jury will be redressed by a favorable decision” from

the court. Jd. at 560-61 & n.1 (citations omitted).

Under these controlling principles, plaintiffs in a

political-gerrymandering case lack standing to bring

a statewide challenge. They could only possibly have

standing to challenge their own districts, based upon

an allegation that their legislature’s treatment of that

district's lines caused them individualized harm.

This follows directly from this Court’s racial-gerry-

mandering caselaw, and would obtain even absent

this controlling, on-point precedent.

a. In the racial-gerrymandering context, this

Court has identified two kinds of cognizable, personal

harms that plaintiffs could suffer: (1) “being person-

ally ... subjected to a racial classification,” and (2)

“being represented by a legislator who believes his

primary obligation is to represent only the members

of a particular racial group” in whose favor the district

was gerrymandered, rather than the district’s entire

electorate. Ala. Legislative Black Caucus, 135 S. Ct.

at 1265 (alterations omitted) (citing Bush v. Vera, 517

U.S. 952, 957 (1996) (principal opinion of O’Connor,

J.); Shaw v. Reno, 509 U.S. 630, 648 (1993)). Because

these harms “directly threaten [only] voter|s] who

live[ ] in the district attacked,” plaintiffs could only

have standing to challenge their own “specific” dis-

tricts alone, not the plan “considered as an undiffer-

entiated ‘whole.” Jd. That is, voters who live in other

districts have not been “personally [| ] subjected to a[n]

[impermissible] classification,” and thus generally

lack standing. United States v. Hays, 515 U.S. 737,

745 (1995).

These controlling principles apply directly to the

political-gerrymandering context, meaning that a po-

litical-gerrymandering plaintiff could only possibly

have standing to challenge “the boundaries of [the

plaintiffs] individual district[ ],” not the State redis-

tricting plan “considered as an undifferentiated

‘whole,” Ala. Legislative Black Caucus, 135 S. Ct. at

1265; accord Vieth, 541 U.S. at 327—28 (Stevens, J..,

dissenting). Only voters living in an allegedly parti-

san-gerrymandered district could even arguably be

“denied equal treatment because of the legislature’s

reliance on” partisan “criteria.” Hays, 515 U.S. at

744—45. And only the “[vJoters in [such] districts may

suffer [ | special representational harms,” such as the

“winner of an election in a [partisan]-gerrymandered

district” regarding the “object of her fealty” as the “ar-

chitect of the district.” Vieth, 541 U.S. at 328 n.18,

330 (Stevens, J., dissenting) (first brackets in origi-

nal, citation omitted).

A contrary conclusion would create an intolerable

loophole in this Court’s jurisprudence, perversely fa-

voring politics-based claims over race-based claims.

As this Court has explained, “racial identification is

highly correlated with political affiliation” in certain

parts of this country. Cooper, 137 S. Ct. at 1473 (cita-

tion omitted). If this Court were now to hold that

plaintiffs have standing to bring statewide partisan-

ship claims, whereas they lack standing to bring

statewide racial claims under controlling caselaw, see

Hays, 515 U.S. at 745, the obvious solution for them

would be to frame their lawsuits as partisanship

cases.

b. Even without the benefit of this Court’s racial-

gerrymandering caselaw, voters suffer no particular-

ized injury to a cognizable legal interest from alleged

partisan gerrymanders outside of their own district.

Lujan, 504 U.S. at 560-61 & n.1. Under a single-

member distri.+ system, electors vote for individual

Assembly members to represent them, “not for a

statewide slate of legislative candidates put forward

by the parties,” who then represent all of the voters in

the State. Bandemer, 478 U.S. at 159 (O’Connor, J.,

concurring in the judgment). Accordingly, individual

voters, living in individual districts, suffer no concrete

injury resulting from maps impacting districts in

other parts of the State.

Notably, a voter stands in the same attenuated

relationship to assembly members from other dis-

tricts in a state legislature as that voter stands to

Representatives from other House of Representatives

districts (including from other States). While a Wis-

consin Democrat might prefer that Democrats in Ohio

elect a majority-Democrat House delegation (and may

even donate to Ohio Democrat candidates to forward

that cause), that Wisconsin Democrat voter certainly

suffers no individualized, concrete harm from a pro-

Republican gerrymander or some other voting meas-

ure (such as a stringent residency requirement, see,

e.g., Marston v. Lewis, 410 U.S. 679 (1973) (per cu-

riam)) that leaves Ohio Democrats with fewer House

members to send to Washington D.C. The same logic

applies, to the same degree, if that Wisconsin Demo-

crat wants more Democrats, from other districts,

elected to the Assembly and believes that Act 43 frus-

trated this desire.

2. Plaintiffs in this case are voters who reside in

11 of Wisconsin’s 99 assembly districts. JA153—55.

They objected to Act 43 only “as an undifferentiated

whole,” Ala. Legislative Black Caucus, 135 S. Ct. at

1265—66 (emphasis removed), and did not argue that

any of their districts were unlawfully gerrymandered.

Plaintiffs thus lack standing, as they never even

sought to establish that Act 43 causes them injury “in

a personal and individual way.” Lujan, 504 U.S. at

560 n.1; see Hays, 515 U.S. at 745.

The example of lead plaintiff William Whitford

demonstrates how clearly Plaintiffs have failed to es-

tablish their own standing. Whitford lives in a heav-

ily Democratic, Madison-based Assembly district.

Both before and after Act 43, Democrats ran unop-

posed, or won by extremely large margins, in Whit-

ford’s district. Dkt. 147:37; Defs. Ex. 538, at 28, Dkt.

147:27-28; Defs. Ex. 539, at 26-27, Dkt. 147:27—28.

Act 43 is even further afield from Whitford’s district

because the map-drawers presented their draft maps

to legislative leaders by region. See supra p. 15. So

even if Plaintiffs could plausibly allege that some dis-

trict(s) in some other region of Wisconsin were sub-

jected to an unlawful district-specific gerrymander,

that alleged violation could not relate in any “concrete

and particularized” or “causal” way to Whitford’s dis-

trict. Lujan, 504 U.S. at 560. As Whitford testified,

the injury that he believes that he suffered was a di-

minishment of his “ability to engage in campaign ac-

tivity to achieve a majority in the Assembly.” Dkt.

147:37. That is not a concrete, particularized injury;

instead, it is a subjective preference that any person

could assert, so long as that person is interested in the

election of more Wisconsin Democrats.

3. The district court and Plaintiffs offered several

reasons as to why they believe Plaintiffs have stand-

ing. None of those arguments are convincing.

First, the district court held that because the Leg-

islature utilizes a “caucus system,” which often passes

legislation by the majority party only rather than

through bipartisan coalitions, Act 43 “diminishes the

value of the plaintiffs’ votes in a very significant way.”

J.S. App. 220a. But Plaintiffs do not vote for a party

in Assembly elections; they vote in single-member dis-

trict elections. See supra pp. 11, 31. So even if one

assumes that Act 43 would yield fewer Democrats in

the Legislature as an aggregate whole, this does not

“diminish| |” Plaintiffs’ votes any more than if some

action by the Ohio legislature reduced the number of

Democrats in the House for Wisconsin Democrat

House members to caucus with.

Second, the district court sought to analogize to

Baker v. Carr, 369 U.S. 186 (1962). J.S. App. 221la—

22a. But Baker held that plaintiffs who live in over-

populated, and thus underrepresented, districts have

standing to bring one-person, one-vote claims. See

Baker, 369 U.S. at 207—08. Plaintiffs have not argued

that they suffered any individual injury of the type

alleged by plaintiffs who live in overpopulated dis-

tricts. Unlike in Baker, each of Plaintiffs’ votes has

the same weight as the votes of their fellow citizens.

Plaintiffs have, instead, rested entirely on a statewide

injury theory that finds no grounding in Baker.

Third, Plaintiffs point out that “not a single Jus-

tice objected” to the allegedly “statewide [ | nature” of

the claim in LULAC. Mot. to Affirm 4, 27. But when

standing is “assumed by the parties” and “assumed

without discussion by the Court,” a merits decision

has “no precedential effect” on the standing issue.

Steel Co. v. Citizens for Better Envu't, 523 U.S. 83, 91

(1998). And there is good reason why LULAC did not

discuss the statewide standing issue. At oral argu-

ment, counsel for the LULAC plaintiffs explained that

the claimed political gerrymander involved only the

districts of “six Democratic Congressmen who had

managed to be elected in Republican leaning dis-

tricts.” Tr. of Oral Argument at 5, LULAC, 548 U.S

399 (No. 05-204); see also LULAC, 548 U.S. at 412-

13. And, counsel explained, at least one plaintiff re-

sided in each of these districts, so “there [was] stand-

ing.” Tr. of Oral Argument at 35, LULAC, 548 U.S

399 (No. 05-204). The defendants did not dispute that

those plaintiffs had district-specific standing, suffi-

cient to bring their six-district-specific claim.

Finally, Plaintiffs invoked the ipse dixit that “par-

tisan gerrymandering is inherently a statewide activ-

ity” and thus they must have standing to challenge

Act 43 on a statewide basis. Mot. to Affirm 4 (empha-

sis added). But it is clearly possible for a plaintiff to

bring a district-specific partisanship claim, as did one

of the Vieth plaintiffs. See Vieth, 541 U.S. at 318-19

(Stevens, J., dissenting); accord Shapiro v. McManus,

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

single-district partisan-gerrymandering claim); Ed-

ward B. Foley, The Gerrymander and the Constitu-

tion: Two Avenues of Analysis and the Quest for a

Durable Precedent, Ohio St. U. Moritz C. L. Pub. L. &

Legal Theory Working Paper Series No. 401, at 13—15

(July 10, 2017) (urging a district-specific political-ger-

rymandering test).®

B. Plaintiffs’ Challenge To Act 43 As An Un-

lawful Statewide Gerrymander Presents

A Nonjusticiable Controversy

1. Federal courts lack jurisdiction to decide polit-

ical questions. Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189, 195 (2012). This Court has “set forth

six independent tests for the existence of a political

question.” Vieth, 541 U.S. at 277—78 (plurality op.).

8 Available at https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=2999738.

Particularly relevant here is one of the most “impor-

tan|t]” and “certai[n]” of those tests, id.: a claim is

nonjusticiable if there is “a lack of judicially discover-

able and manageable standards for resolving it.” Id.

(citation omitted).

In Bandemer, Justice O’Connor, joined by Chief

Justice Burger and then-Justice Rehnquist, con-

cluded that “partisan gerrymandering claims of major

political parties raise a nonjusticiable political ques-

tion.” 478 U.S. at 144 (O’Connor, J., concurring in the

judgment). Adjudicating such claims would propel

courts “toward some form of rough proportional] rep-

resentation,” inconsistent “with our history, our tra-

ditions, [and] our political institutions.” Jd. at 145.

Authorizing these claims is particularly inappropri-

ate in a “statewide” context because “[njone of the

elections for the [ |] Legislature are statewide.” /d. at

153 (O’Connor, J., concurring in the judgment).

Revisiting these concerns in Vieth, in the wake of

“lelighteen years of essentially pointless litigation,”

five Justices concluded that political-gerrymandering

claims either were nonjusticiable, or could prove non-

justiciable after further experience. Writing for a

four-Justice plurality, Justice Scalia concluded that

partisan-gerrymandering claims are not justiciable,

after discussing the standards offered in Bandemer,

by the Vieth plaintiffs, and by the dissenting Justices,

and finding each wanting. /d. at 281-301. Justice

Kennedy, while not joining the Vieth plurality, agreed

that none of the proposed standards was adequate,

while adding two additional important considera-

tions. Jd. at 306 (Kennedy, J., concurring in the judg-

ment). First, no party had presented “comprehensive

and neutral principles for drawing electoral bounda-

ries,” or “helpful discussions on the principles of fair

districting discussed in the annals of parliamentary

or legislative bodies.” Jd. at 306-08. Second, given

this “dearth of helpful historical guidance,” “interven-

ing courts—even when proceeding with best inten-

tions—would risk assuming political, not legal,

responsibility for a process that often produces ill will

and distrust.” Jd. at 307, 309. Although Justice Ken-

nedy allowed for the “possibility” of judicial involve-

ment “if some limited and precise rationale were

found,” id. at 306, he recognized that there were

“weighty arguments for holding cases like these to be

nonjusticiable; and those arguments may prevail in

the long run,” id. at 309.

2. Political-gerrymandering claims could only be

justiciable if litigants successfully identify “compre-

hensive and neutral principles for drawing electoral

boundaries,” such as those derived from “the annals

of parliamentary or legislative bodies.” 541 U.S. at

306, 308 (Kennedy, J., concurring in the judgment).

It has been now 13 years since Vieth, and over three

decades since Bandemer. Yet no litigant has identi-

fied such principles and historical sources. This Court

should thus hold that _ political-gerrymandering

claims are nonjusticiable, at least for statewide claims

like those in Bandemer, Vieth, and this case. That

statewide claims like those at issue in this case are

most clearly outside of courts’ jurisdiction is further

reinforced by the standing discussion above, supra pp.

27-34, including because “[njone of the elections for

the [ | Legislature are statewide,” Bandemer, 478 U.S.

at 144 (O’Connor, J., concurring in the judgment).®

The lack of historically derived “comprehensive

and neutral principles” for redistricting illustrates

the futility of continued litigation on this question. As

Plaintiffs conceded below, given that this Court has

held that “proportional representation,” “predomi-

nant or exclusive partisan intent,” “district noncom-

pactness,” and “minority party entrenchment” each

do not qualify as sufficiently neutral principles, the

“only theory” that Plaintiffs can imagine still remain-

ing is “partisan symmetry.” Dkt. 68:56 (emphasis in

original). Partisan symmetry, Plaintiffs have ex-

plained, is “the idea that a district plan should treat

the major parties symmetrically with respect to the

conversion of votes to seats.” JA28.

But partisan symmetry is simply not a “compre-

hensive and neutral principle| | for drawing electoral

boundaries.” Vieth, 541 U.S. at 306—07 (Kennedy, J.,

9 Given that this case involves only such statewide claims,

this Court need not decide here whether partisanship-based

claims brought on an entirely different theory are justiciable.

See, eg., Edward B. Foley, supra, at 13-15, available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999738

(proposing a district-specific test based upon comparing a dis-

trict to the Elbridge Gerry gerrymander).

concurring in the judgment), as the LULAC plurality

correctly explained when an amicus brief suggested

this principle, 548 U.S. at 419-20 (plurality op.); see

also infra pp. 43, 47—48 (extended discussion of this

amicus brief). While partisan symmetry is some so-

cial scientists’ currently favored idea of redistricting

fairness, it lacks any support in the “annals of parlia-

mentary or legislative bodies,” Vieth, 541 U.S. at 308

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

modern-day practice by legislatures or courts. “There

is,” after all, “no basis in the historical record for say-

ing that the Constitution embodies a standard of par-

tisan symmetry.” Edward B. Foley, Due Process, Fair

Play, And Excessive Partisanship: A New Principle

For Judicial Review Of Election Laws, 84 U. Chi. L.

Rev. 655, 727 (2017). Even today, no State uses par-

tisan symmetry as a redistricting principle. See gen-

erally Natl Conference of State Legislatures,

Redistricting Law 2010, November 2009, at 172—217

(50-State survey).!° And where neutral courts must

draw district lines, they do not generally seek to for-

ward partisan symmetry. To the contrary, courts can

proceed “by taking the [prior] plan as a template and

adjusting it for population deviations,” Baumgart,

2002 WL 34127471, at *7, even where this “leave|s]

... largely in place” a partisan asymmetry enacted by

a prior legislature, LULAC, 548 US. at 412 (citation

omitted).

10 Available at http://www.ncsl.org/Portals/1/Documents/Re

districting/Redistricting_2010. pdf.

Partisan symmetry is also not a “comprehensive

and neutral principle|[ |,” Vieth, 541 U.S. at 306 (Ken-

nedy, J., concurring in the judgment), for an addi-

tional reason, one which has plagued every statewide

test that has been proposed to this Court: it is inexo-

rably based upon proportional-representation princi-

ples. Partisan symmetry relies upon the premise that

the ideal system is one in which voters’ statewide

preferences are reflected in a proportionate statewide

share of seats, by means of all major parties “con-

ver[ting] votes to seats” with equal efficiency. JA28.

But this proportionality assumption is inconsistent

“with our history, our traditions, [and] our political

institutions,” Bandemer, 478 U.S. at 145 (O’Connor,

J., concurring in the judgment), and is supported by

“no authority,” Vieth, 541 U.S. at 308 (Kennedy, J.,

concurring in the judgment). That every statewide

test so far suggested boils down to a “proportional rep-

resentation standard” convincingly highlights that it

is very likely “impossible” to adopt a statewide test

that does not rely upon this inapposite, ahistoric pre-

cept. See Peter Schuck, Partisan Gerrymandering: A

Political Problem Without Judicial Solution, in Polit-

ical Gerrymandering and the Courts 240, 240 (B.

Grofman ed., 1990).

Failing to declare such statewide partisanship

claims nonjusticiable, when no test has emerged in

over three decades, “risk[s]” courts’ “assuming politi-

cal, not legal, responsibility for a process that often

produces ill will and distrust,” Vieth, 541 U.S. at 307

(Kennedy, J., concurring in the judgment), and is “pri-

marily the duty and responsibility of the State,”

Chapman, 420 U.S. at 27. That is what occurred be-

low, as the district court invalidated Act 43 on a the-

ory that no party had suggested, after subjecting

Defendants to a time-consuming trial. See supra pp.

17-21.

Statewide political-gerrymandering claims are

nonjusticiable regardless of whether plaintiffs style

those claims as arising under the First or Fourteenth

Amendments. In Vieth, Justice Kennedy observed

that “[t]he First Amendment may be the more rele-

vant constitutional provision in future cases [of] par-

tisan gerrymandering.” 541 U.S. at 314 (Kennedy, J.,

concurring in the judgment). Plaintiffs brought their

claims under both the First and Fourteenth Amend-

ments, but neither Plaintiffs nor the district court dis-

tinguished between the claims in litigating and

adjudicating this case. See J.S. App. 55a, 109a—10a.

The unanswered (and unanswerable) challenge under

either Amendment remains the same on the issue of

justiciability: identifying historically based, “compre-

hensive and neutral principles for drawing electoral

boundaries.” Vieth, 541 U.S. at 306, 308 (Kennedy, J.,

concurring in the judgment).

Finally, as discussed in detail immediately below,

see infra pp. 41—59, that Plaintiffs failed to propose

any iimited and precise test for adjudicating statewide

partisan-gerrymandering claims further supports the

conclusion that such claims are nonjusticiable. See

541 U.S. at 292—301 (plurality op.) (finding nonjusti-

ciability in large part because the proposed tests

proved inadequate). Indeed, that the district court

adopted a recycled version of the Bandemer plural-

ity’s test, while Plaintiffs have now turned to a test

rejected by the LULAC plurality, see infra pp. 47—48,

highlights that no judicially manageable test is avail-

able.

IL Plaintiffs Failed To State A Claim Because

They Did Not Offer A “Limited And Precise”

Test For Adjudicating Their Allegations

Plaintiffs failed to state a claim on which relief

can be granted because they did not articulate a “lim-

ited and precise” legal standard. Vieth, 541 U.S. at

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

is, even if this Court concludes that there could poten-

tially be historically based “comprehensive and neu-

tral principles” that help mediate whether there has

been “too much” partisanship for justiciability pur-

poses, LULAC, 548 U.S. at 420 (plurality op.); but see

supra pp. 34-41, Plaintiffs’ failure to propose a “lim-

ited and precise” test for adjudicating their partisan-

based allegations requires dismissal of their claims

under “Fed. Rule Civ. Proc. 12(b)(6),” Vieth, 541 U.S.

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

A. This Court’s caselaw provides the framework

for deciding whether Plaintiffs have met their burden

of identifying a “limited and precise” standard.

In Bandemer, this Court faced a statewide parti-

san-gerrymandering claim under which “Democratic

candidates received 51.9% of the votes,” but won only

43 out of 100 seats available. 478 U.S. at 113—15 (plu-

rality op.). As relevant to the present case, the

Bandemer plurality rejected the plaintiffs’ challenge

under a three-part standard based upon discrimina-

tory intent, discriminatory effect, and inadequate jus-

tification. Regarding intent, “[a]s long as redistricting

is done by a legislature, [partisan intent] should not

be very difficult to prove.” Jd. at 129. As for effect,

“unconstitutional discrimination occurs only when

the electoral system is arranged in a manner that will

consistently degrade a voter’s or group of voters’ in-

fluence on the political process as a whole.” Jd. at 132.

“[A] finding of unconstitutionality must be supported

by evidence of continued frustration of the will of a

majority of the voters or effective denial to a minority

of voters of a fair chance to influence the political pro-

cess.” Id. at 133 (emphasis added). As to the third

part of the test, “[i]f there were a discriminatory effect

and a discriminatory intent,” a court’s job was to eval-

uate the plan for “valid underpinnings.” Jd. at 141.

Eighteen years later, in Vieth, this Court rejected

the Bandemer plurality’s test, as well as every other

test proposed in that case. Bandemer’s entrench-

ment-based effects test led to “puzzlement and con-

sternation,” while giving no “real guidance to lower

courts.” Vieth, 541 U.S. at 282—83 (plurality op.) (ci-

tation omitted); accord id. at 308 (Kennedy, J., con-

curring in the judgment). As for the other proposed

tests, the plurality and Justice Kennedy rejected each

as “either unmanageable or inconsistent with prece-

dent, or both.” Jd. at 308 (Kennedy, J., concurring in

the judgment). Most relevant for purposes of this

case, the plurality and Justice Kennedy rejected Jus-

tice Breyer’s test—somewhat similar to the Bandemer

plurality’s—that a plan is impermissible if it involves

“unjustified use of political factors to entrench a mi-

nority in power,” id. at 360 (Breyer, J., dissenting)

(emphasis altered); see id. at 299 (plurality op.); id. at

308 (Kennedy, J., concurring in the judgment). In all,

the controlling principle from Vieth is the one that

Justice Kennedy announced in his concurring opin-

ion: a partisan-gerrymandering claim fails unless the

plaintiff carries a burden that the plaintiffs in Vieth

and Bandemer had failed to: articulate a “limited and

precise” legal standard. Vieth, 541 U.S. at 306 (Ken-

nedy, J., concurring in the judgment).

Two years after Vieth, a plurality of this Court in

LULAC rejected a test for detecting impermissible

partisan effect proposed by group of amici professors

led by Professor Gary King. 548 U.S. at 420—21 (plu-

rality op.). Professor King et al. based this proposed

approach on the concept of “partisan symmetry,”

which “compar[ed] how both parties would fare hypo-

thetically if they each (in turn) had received a given

percentage of the vote.” Br. of Amici Curiae Profs.

Gary King et al., League of United Latin Am. Citizens

uv. Perry, 548 U.S. 399 (2006) (Nos. 05-204, 05-254, 05-

276, 05-439), 2006 WL 53994, at *5, *7. The profes-

sors offered no single means of measuring partisan

asymmetry, instead referring this Court to “a se-

quence of closely related, and steadily improving, sta-

tistical methods” in social-science texts. Jd. at *9.

And they took “no position on how this Court could

best implement a [partisan-symmetry based] test,” id.

at *12, arguing that “future” litigation would “flesh

out the particulars” of their proposed standard, id. at

*16. A plurality of this Court rejected the professors’

suggestion for failing to furnish a “reliable measure of

fairness,” LULAC, 548 U.S. at 419-20 (plurality op.),

explaining that, among its other faults, this proposal

does not answer the key question of “how much parti-

san dominance is too much,” ¢. at 420.1!

B. Plaintiffs and the district court have proposed

three different three-part tests, but none satisfies the

“limited and precise” requirement.

Before discussing the proposed tests’ critical ef-

fects prongs, it is important to understand that these

tests’ other two prongs—partisan intent and lack of

justification—add nothing to the Bandemer plural-

ity’s inadequate test. The first element of the three

proposed tests and the Bandemer plurality’s test is

partisan intent. The district court’s intent element,

11 Several other Justices took no position on the professors’

proposed standard. See, e.g., LULAC, 548 U.S. at 483-84

(Souter, J., concurring in part, dissenting in part) (expressing no

opinion on “the administrability” of this approach); id. at 491—92

(Breyer, J., concurring in part, dissenting in part) (relying on en-

trenchment criterion, with no mention of symmetry test).

for example, requires a demonstration of “an intent to

entrench a political party in power,” J.S. App. 117a,

which is not meaningfully different from the

Bandemer plurality requiring an intent to discrimi-

nate against “an identifiable political group,” 478 U.S.

at 127, or intending the map to have “substantial po-

litical consequenes,” id. at 129. Similarly, the pro-

posed tests and the Bandemer plurality’s test include

matching “justification” prongs, which permit uphold-

ing a map if its partisan effect can be sufficiently jus-

tified. Compare J.S. App. 109a—10a, with 478 U.S. at

141.

It follows that if there is anything in the district

court’s or Plaintiffs’ proposals capable of offering a

“limited and precise” standard, it is not located in the

Bandemer-plurality-derived “intent” and “justifica-

tion” tests. Instead, the principle must be found—if

at all—in the proposals’ effects tests. Those three ap-

proaches to measuring partisan effect are:

1. Social Science Hodgepodge. In their Motion to

Affirm, Plaintiffs abandoned their prior reliance on

the efficiency gap as the definitive test for partisan

effect, see infra pp. 48—49, and argued that this effect

should be adjudicated based upon an unspevified com-

bination of “partisan asymmetry” and “partisan bias”

measures, see Mot. to Affirm 10, the efficiency gap,

“mean-median difference” calculations, and “analyti-

cal techniques like sensitivity testing,” all of which

are said to “exploit recent conceptual and methodolog-

ical advances in the social sciences.” Mot. to Affirm

10-12 & n.4, 21 & n.8. Sorting out the “precise con-

tours” of which of these (or other) social-science met-

rics would apply, when, and how, would be left for

“subsequent litigation” in the lower courts. Mot. to

Affirm 22-23.

It would be difficult to conceive of a standard less

“limited” and less “precise” than Plaintiffs’ social-sci-

ence stew. Touting “recent conceptual and methodo-

logical advances in the social sciences,” Plaintiffs

would have this Court instruct district courts to eval-

uate the effects of alleged partisan gerrymanders by

applying an unbounded variety of metrics. Mot. to Af-

firm 10-12 & n.4, 21 & n.8. As for which metric or

metrics would govern any case, Plaintiffs provide no

answer or even rough guidance. Instead, they urge

this Court not “to endorse any particular measure of

partisan asymmetry or any particular technique for

demonstrating durability.” Mot. to Affirm 22 (empha-

sis omitted). Better to leave it to lower courts to figure

it out in “subsequent litigation”; presumably only af-

ter having subscribed to Political Research Quarterly,

American Political Science Review, and other essen-

tial journals. Mot. to Affirm 22-23.

Whereas “Bandemer begot only confusion,” Vieth,

541 U.S. at 283 (plurality op.) (citation omitted),

Plaintiffs’ social-science approach would sow chaos.

Each legislatively drawn plan would be immediately

challenged in federal court. A trial would follow,

where each side would present dueling “social sci-

ence” expert(s), and then the district court would need

to pick a winner. There would be no way for any leg-

islature to know, ex ante, what metric would guide the

inevitable future trial. Notably, whereas Plaintiffs’

favored social-science metric below (efficiency gap)

found an impermissible partisan effect in one of every

three plans, see infra p. 52, Plaintiffs’ multi-metric ap-

proach threatens even more plans, since the plaintiffs

in each case could choose their own favored metric.

Plaintiffs’ reliance on Reynolds v. Sims, 377 U.S.

533 (1964), to deflect these administrability problems,

Mot. to Affirm 23, is unpersuasive. In Reyno/ds, this

Court identified the constitutional violation and

standard—one person, one vote—and then sought to

develop a way to enforce that constitutional mandate.

See Reynolds, 377 U.S. at 565—68, 577—78; see also Vi-

eth, 541 U.S. at 290 (plurality op.). Here, in contrast,

Plaintiffs have not articulated any “comprehensive

and neutral principles” necessary to identify the con-

stitutional violation and standard, Vieth, 541 U.S. at

306, 308 (Kennedy, J., concurring in the judgment),

and thus there is no constitutional principle for dis-

trict courts to seek to develop in future cases. And if

Plaintiffs’ Reynolds-based pitch sounds familiar, it is

because the professors’ amicus brief in LULAC urged

that same approach. See King Br., 2006 WL 53994,

at *16.

The similarities between Plaintiffs’ Motion to Af-

firm and Professor King et al.’s submission in LULAC

are, in fact, quite striking. Like Plaintiffs here, the

professors invited this Court to adopt a social-science-

based analysis drawn from severa] developing met-

rics. Compare King Br., 2006 WL 53994, at *9~—*11,

with Mot. to Affirm 5, 10, 12 n.4, 21. Like Plaintiffs

here, Professor King et al. declined to explain “how

this Court could best implement” that test. Compare

King Br., 2006 WL 53994, at *12, with Mot. to Affirm

22-23. And like Plaintiffs here, the professors offered

assurance that “lower courts and this Court will flesh

out the particulars of the rule in the future,” citing

Reynolds. Compare King Br., 2006 WL 53994, at *16,

with Mot. to Affirm 22—23 (tracking this language).

All this Court needs to do is to “set a general rule pro-

hibiting partisan gerrymanders,” and then lower

courts could “decide the specifics of the issue as facts

develop.” See King Br., 2006 WL 53994, at *17; Mot.

to Affirm 20—22. This Court found the professors’ ap-

proach inadequate, LULAC, 548 U.S. at 419-20 (plu-

rality op.), and Plaintiffs here have not cured that

fatal defect.

2. Efficiency Gap. Plaintiffs took a different ap-

proach before the district court, arguing that the ef-

fects test should be based upon the so-called

“efficiency gap.” See supra pp. 17-19. This concept,

recently proposed in a law-review erticle by one of

Plaintiffs’ attorneys, Stephanopoulos & McGhee, 82

U. Chi. L. Rev. 831, measures the major parties’ rela-

tive percentage of “wasted” votes, defined as ballots

cast “(1) for a losing candidate, or (2) for a winning

candidate but in excess of what she needed to prevail.”

Id. at 834. The formula takes the difference between

the parties’ respective wasted votes in an election and

divides it by the total number of votes cast. J.S. App

32a. If the gap is zero, the “two parties waste votes at

an identical rate”; if the gap favors one party, that

party “wasted fewer votes than its opponent, [and]

was able to translate, with greater ease, its share of

the total votes cast in the election into legislative

seats.” J.S. App. 32a—33a. Plaintiffs contended below

that if the gap for a given plan exceeds 7% in the first

election, this establishes unconstitutional effect. J.S.

App. 33a—34a. The district court did not adopt this

approach, see J.S. App. 159a, 176a, and Plaintiffs no

longer rely upon it, see Mot. to Affirm 10. And with

good reason.

First, the efficiency gap is built upon the extra-

constitutional assumption that proportionate repre-

sentation is the baseline, see supra pp. 35—36, devia-

tion from which is the touchstone of impermissible

effect. The efficiency gap maintains as its core prem-

ise that, insofar as a districting plan renders Demo-

crats or Republicans unable to translate their

statewide vote totals into a proportionate number of

legislative seats, they are constitutionally harmed.

So “[ijf Party A has a large statewide total of votes,

say 60%, but has only received 51% of the seats, there

is a large efficiency gap reflecting . . . [that] the num-

ber of seats they won was disproportionally small

compared to their statewide vote totals.” J.S. App.

270a (Griesbach, J., dissenting). In fact, the efficiency

gap requires hyperproportionality. The gap theory as-

sumes that “for every percentage point increasing in

vote, you'll get a 2 percentage point increase in seat

share.” Dkt. 149:188. In other words, even “if a state

successfully achieved proportional representation,

the plan might fail an [efficiency gap] analysis be-

cause it fails to give a hyperproportional share to the

party winning the majority of the statewide vote.”

J.S. App. 175a.

Second, the gap’s reductionist view of voting—re-

garding ballots as economic transactions, valuable

only when “efficiently” cast—distorts the role that

votes play in our democracy. The premise of the gap’s

theory is that votes are “wasted” if cast (1) “for a los-

ing candidate,” or (2) “for a winning candidate but in

excess of what he or she needed to prevail.” JA28—29.

But a Republican who wins 50.1% of the vote is not

interchangeable with a Republican elected at a com-

fortable 75% margin. “It is exceptionally likely that

legislators in swing districts will adopt more moder-

ate, centrist positions than some of their colleagues,

and they will of necessity be more responsive to the

49% of the electorate that did not vote for them.” J.-S.

App. 287a (Griesbach, J., dissenting).

Third, the efficiency gap’s zero-gap baseline is

systematically biased against Republicans and in fa-

vor of Democrats, at least under modern politica] con-

ditions. ‘This is largely because Democratic voters

concentrate in big cities and “smaller industrial ag-

glomerations such that they can expect to win fewer

than 50% of the seats when they win 50% of the

votes.” Jowei Chen & Jonathan Rodden, Uninten-

tional Gerrymandering: Political Geography and Elec-

toral Bias in Legislatures, 8 Q.J. Pol. Sci. 239, 239-40

(2013); Vieth, 541 U.S. at 290 (plurality op.) (recogniz-

ing this phenomenon); id. at 359 (Breyer, J., dissent-

ing) (same). In Wisconsin, “Republican-favoring

efficiency gaps have been part of [the] political land-

scape for more than three decades,” well before Re-

publicans were drawing district lines, J.S. App. 309a

(Griesbach, J., dissenting), including under court-

drawn plans, JA222-24; Defs. Ex. 547, at ¥ 100, Dkt.

147:27—28. Wisconsin is hardly unusual in this re-

spect. Professor Jackman, Plaintiffs’ expert, conceded

that efficiency gaps have trended in Republicans’ fa-

vor since the mid-1990s, even though only two of the

41 States in Jackman’s data set were Republican-con-

trolled. Dkt. 149:252—67; Pls. Ex. 34, at 45, Dkt.

147:7—8. And because of its systemic anti-Republican

bias, the efficiency gap metric is also incapable of

catching what many generally understand as Demo-

crat-enacted gerrymanders. See Defs. Ex. 547, at

9 117, 120, Dkt. 147:27—28; Dkt. 150:75—79.

Fourth, the efficiency-gap theory has numerous

technical defects, which can only be briefly summa-

rized here. Even maps that include “many competi-

tive districts”—-which can be a feature, not a bug, of a

districting plan, see Gaffney v. Cummings, 412 U.S.

735, 752-52 (1973)—would be constitutionally sus-

pect. J.S. App. 174a—75a. Under such plans, a “nar-

row statewide preference,” Bandemer, 478 U.S. at 130

(plurality op.), would send efficiency-gap scores off the

charts because in close races, the party that wins

“wastes” very few votes while the party that loses

“wastes” all of its votes. This would cast a presump-

tion of unconstitutionality on what many regard to be

“a desirable and non-partisan policy choice.” J.S. App.

174a—75a. As the dissent put it, “Plaintiffs would use

the Republicans’ own electoral success against them:

.. . the more close races the Republicans win,” the

larger the efficiency gap, and the larger the gap, the

more likely “the Republicans’ wins must have been

the result of an invidious gerrymander—a self-ful-

filling prophecy.” J.S. App. 294a (Griesbach, J., dis-

senting). More generally, the gap is overly sensitive

to wave elections. “[W]inning close elections is the

surest way to make sure the other side racks up lots

of wasted votes—every losing vote is wasted, whereas

only a few winning votes are wasted.” J.S. App. 293a

(Griesbach, J., dissenting). So it is possible that a

high efficiency gap indicates nothing except that one

party beat the other party in several close elections—

a fact that says nothing about whether the map itself

is “too” partisan.

Finally, the efficiency gap is overbroad, putting so

many plans in jeopardy that it “would risk [federal

courts] assuming political, not legal, responsibility for

a process that often produces ill will and distrust.”

Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the

judgment). Plaintiffs’ 7% gap first-election threshold

would find an impermissible effect in one of every

three plans over nearly 45 years. See JA193—94, 201.

Even considering only elections held in 2012 or 2014,

Plaintiffs’ expert found an efficiency gap greater than

10% in Florida, Indiana, Kansas, Michigan, Missouri,

North Carolina, New York, Ohio, Rhode Island, Vir-

ginia, Wisconsin, and Wyoming. SA253. Nor would

this analysis be limited to state legislatures, as this

metric would presumably be applied to plans ranging

from congressional maps, see Vieth, 541 U.S. 267, to

water districts, see Jimenez v. Hidalgo Cty. Water Im-

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

affg 68 F.R.D. 668 (S.D. Tex. 1975), abrogated on

other grounds by Bandemer, 478 U.S. 109.

3. Entrenchment. The district court adopted an

entrenchment-based partisan test; Act 43, the court

concluded, had an unlawful partisan effect because “it

secured for Republicans a lasting Assembly majority,”

J.S. App. 145a, by “impeding |Democrats’] ability to

translate their votes into legislative seats...

throughout the life of’ the plan, J.S. App. 176a—77a.

Plaintiffs did not urge the adoption of this test below

and did not defend it in their Motion to Affirm. In-

deed, Plaintiffs conceded that Vieth rejected “minority

party entrenchment” as a test for impermissible par-

tisan effect. See Dkt. 68:56. The district court’s ap-

proach is thus foreclosed by binding precedent and

waived by Plaintiffs’ position on appeal. But to the

extent this Court concludes that entrenchment should

play any part in a partisan-effects analysis, and holds

that Act 43 is not otherwise permissible as a matter

of law, see infra pp. 56-57, Defendants respectfully

submit that a remand would be necessary to permit

Defendants to fairly litigate the entrenchment issue.

a. Plaintiffs’ concession below that this Court’s

precedent foreclosed an entrenchment-based effects

test was well warranted.

In Bandemer, the plurality proposed an effects

test under which “unconstitutional discrimination oc-

curs only when the electoral system is arranged in a

manner that will consistently degrade a voter’s or a

group of voters’ influence on the political process as a

whole.” 478 U.S. at 132 (emphasis added). “[A] find-

ing of unconstitutionality must be supported by evi-

dence of continued frustration of the will of a majority

of the voters or effective denial to a minority of voters

of a fair chance to influence the political process.” Id.

at 133 (emphasis added). Every Justice in Vieth re-

jected this test, see 541 U.S. at 282—84 (plurality op.);

id. at 308 (Kennedy, J., concurring in the judgment);

id. at 317-18 (Stevens, J., dissenting); id. at 346

(Souter, J., joined by Ginsburg, J., dissenting); id. at

355-56 (Breyer, J., dissenting), although Justice

Breyer proposed a somewhat similar entrenchment

rationale where, for example, a majority party had

“twice failed to obtain a majority of the relevant legis-

lative seats,” see id. at 366 (emphasis omitted).

The district court’s entrenchment test, “secur[ing]

for Republicans a lasting Assembly majority,” J.S.

App. 145a, based upon a degrading of the “ability to

translate || votes into legislative seats,” J.S. App.

176a—77a, is indistinguishable from the approach

urged by the Bandemer plurality (and, to a more lim-

ited extent, by Justice Breyer). Both the tests require

“burdening a defined group’s representational rights”

(i.e., “degrading a voter’s influence”) “over the life of

the plan” (i.e., “consistently”). The claimed purpose of

both inquiries is not to detect “disproportionality per

se,” Bandemer, 478 U.S. at 143 n.21 (plurality op.); see

J.S. App. 167a—68a, but to ascertain “continued frus-

tration of the will of a majority,” Bandemer, 478 U.S.

at 133 n.21 (plurality op.) (emphasis added), by en-

trenching a “lasting Assembly majority” over the fol-

lowing decade, J.5. App. 145a.

As this Court held in Vieth, entrenchment is not

a relevant and reliable measure of unconstitutional

partisan gerrymandering. For one thing, it rests upon

the constitutionally baseless “principle that groups

... have a night to proportional representation.”

Vieth, 541 U.S. at 287—98 (plurality op.); id. at 308

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

same time, it does not overcome “the difficulties of as-

sessing partisan strength statewide,” Vieth, 541 U.S.

at 300 (plurality op.), including the problem of ascer-

taining “a person’s politics, [which] is not an immuta-

ble characteristic” and the undeniable fact “that

majority status in statewide races [does not always]

establish[ ] majority status for district contests,” id.

at 287—88 (plurality op.). More practically, the record

of Bandemer’s test proves that abstract entrenchment

tests are unadministrable, producing only “puzzle-

ment,” “consternation,” and “indeterminacy” in the

lower courts. Jd. at 282—83 (plurality op.).

The district court’s gloss on entrenchment is, if

anything, even less defensible than the Bandemer

plurality’s test. In 2012, Wisconsin Democrats re-

ceived 51% of the vote and secured 39% of the Assem-

bly seats. See JA224. In 1982, Indiana Democrats

earned 51.9% of the vote and won 43% of the seats.

Banderwer, 478 U.S. at 115. The district court at-

tempted to distinguish Bandemer by pointing out that

the record here contained the results of a second elec-

tion under Act 43, the 2014 election. J.S. App. 155a—

58a. But Republicans won a majority of the votes cast

(52%) in 2014, see JA224, so they were not a political

minority entrenching itself, see Vieth, 541 U.S. at 366

(Breyer, J., dissenting) (a majority party “twice failed

to obtain a majority” of seats). In any event, if the

district court was suggesting that the Bandemer plu-

rality’s test would have invalidated Act 43 because

there is now a second election to show entrenchment,

that would only further support Defendants’ point

that the district court’s test and the Bandemer plural-

ity’s test are one and the same.

b. Given Plaintiffs’ necessary concession below

that an entrenchment-based inquiry is foreclosed by

this Court’s precedent, as well as Plaintiffs’ single-

minded focus on the efficiency gap, the parties did not

fairly litigate this issue before the district court. To

the extent that this Court were now to conclude that

entrenchment plays any role in a partisan-effects

analysis, but does not also conclude that Act 43 is law-

ful for other reasons, vacatur and remand would be

necessary. See Nautilus, Inc. v. Biosig Instruments,

Inc., 184 8. Ct. 2120, 2131 (2014).

Without receiving any briefing on the issue of en-

trenchment, the district court found that Act 43 “se-

cured for Republicans a lasting Assembly majority”

based upon the uniform swing analyses conducted by

Drs. Gaddie and Mayer. J.S. App. 145a—46a. But nei-

ther analysis is designed to test Republican party en-

trenchment throughout the decade under Act 43.

Gaddie’s swing analysis does not support the dis-

trict court’s conclusion that Act 43 will “secure[ | for

Republicans a lasting Assembly majority.” J.S. App.

145a. As the district court explained, a swing analy-

sis “ask[s] the question .. . what might happen under

different electoral conditions.” J.S. App. 148a (cita-

tion omitted); but see LULAC, 548 U.S. at 420 (plural-

ity op.) (“[W]e are wary of adopting a constitutional

standard that invalidates a map based on unfair re-

sults that would occur in a hypothetical state of af-

fairs.”). To test this hypothetical, “the statewide vote

percentage is altered by a fixed amount, typically in

one-percentage-point increments, across all districts.”

J.S. App. 148a—49a (citation omitted); Dkt. 148:222~-

23. Gaddie’s swing analysis predicted electoral

change assuming that no incumbent would run for

reelection, and making no prediction as to candidate

strength or any other factor that could be expected

under Act 43 in the real world. Dkt. 108:12, 50. No-

tably, even if one were to take Gaddie’s swing analysis

at face value, that analysis entirely refutes any notion

that Act 43 entrenches the Republican Party in the

majority throughout the decade. Under that analysis,

Democrats would win a majority of the Assembly if

they obtained just over 53% of the vote, SA339; J.S.

App. 230a, a vote share that Democrats exceeded in

two out of the three elections (2006 and 2008) leading

up to Act 43, JA223—24.

Mayer’s swing analysis similarly does not support

the district court’s entrenchment finding. As Mayer

conceded at trial, his swing analysis was not designed

to predict what would occur under Act 43 throughout

the entire decade. Dkt. 149:92—93. Understanding

Mayer’s methodology explains why that concession

was unavoidable. Mayer conducted his analysis by

taking the world after the 2012 election—in which Re-

publicans secured a 60-39 majority, JA219—20—and

then adding an “incumbent advantage,” worth as

much as 4% (depending on the district), on the as-

sumption that every incumbent would run again.

Dkt. 149:81-92. He then assumed that Democrats

would gain 3% in every district in a swing election.

Dkt. 149:89; Dkt. 95:29. Unsurprisingly, after shift-

ing all 60 Republican-held seat upwards by as much

as 4% (based upon incumbency), the swing of three

points to Democrats did not gain the Democrats many

seats. But in Wisconsin, incumbents do not run in

every single election. Far from it. For example, of the

60 Republican members who won election to the As-

sembly in 2010, fewer than half were on the general

election ballot for the Assembly again in 2014. Com-

pare Defs. Ex. 538:9-34, Dkt. 147:27—28, with Defs.

Ex. 541:9-31, Dkt. 147:27—28.

UL Act 43 Is Lawful Because It Complies With

Traditional Redistricting Principles And Is

Otherwise Unobjectionable

While the district court’s lack of jurisdiction, as

well as Plaintiffs’ failure to articulate a limited and

precise test, are reason enough to reverse the district

court, there are additional grounds why Plaintiffs’

claims fail. The most obvious such reason comes both

from Vieth and from the historical origins of the polit-

ical-gerrymander concept itself: no unlawful political

gerrymandering has occurred where, as in the case of

Act 43, the legislature complied with traditional re-

districting principles. At the very minimum, given

that the Legislature that created Act 43 considered

political implications only alongside traditional redis-

tricting principles and other legitimate factors, and

given that Act 43 did not depart drastically from the

immediately prior court-drawn map, no further parti-

sanship-based inquiry is necessary.

A. In Vieth, a majority of the Justices of this Court

would not condemn as overly political a plan that com-

plied with traditional redistricting principles. As Jus-

tice Kennedy explained, any “limited and precise”

standard must establish that the legislature drew dis-

tricts “in a way unrelated to any legitimate legislative

objective.” Vieth, 541 U.S. at 306-07 (Kennedy, J.,

concurring in the judgment) (emphasis added); accord

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,

204 (2008) (plurality op.) (partisan motivations do not

establish a violation of the First and Fourteenth

Amendments where the “law is supported by valid

neutral justifications”). Drawing districting lines

that comply with traditional redistricting principles

is, of course, a legitimate legislative objective. See

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

136 S. Ct. 1801, 13806 (2016). Justices Stevens and

Souter (joined by Justice Ginsburg) were even more

specific in their Vieth opinions, making noncompli-

ance with traditional redistricting principles a neces-

sary element of their respective tests. See 541 U.S. at

318 (Stevens, J., dissenting); id. at 347—48 (Souter, J.,

dissenting). Combining these Justices’ conclusions

with the plurality’s holding that the federal courts

cannot condemn any plan on partisanship grounds,

id. at 281 (plurality op.), yields the controlling princi-

ple that a plan that complies with traditional redis-

tricting principles is not an unlawful partisan

gerrymander, see Jacobsen, 466 U.S. at 115-18 &

n.12; Moses H. Cone, 460 U.S. at 17.

The rule that map-drawers have not engaged in

unlawful partisan gerrymandering when they have

complied with these neutral principles derives from

early American history. From the coinage of the term

in 1812, complaints against the original gerrymander

focused on the “fantastic shapes” of the districts and

the “most distorted contour” of the “[t]he outer district

of Essex county” in particular. See Griffith, supra, at

17-19. In arguing against Ohio’s 1842 attempted ger-

rymander, the Whigs lamented that one “need[ } only

a glance at the map to see how far contiguity of terri-

tory has been regarded in the formation of this bill. It

has not only not been regarded; it has been most

grossly disregarded.” Daily Ohio St. J. (Columbus,

August 12, 1842), supra pp. 8—9. In all, “[iJt is impos-

sible to overstate the importance of the district’s gro-

tesque shape as an essential element of its

impropriety to those that condemned it in the nine-

teenth century.” Foley, 84 U. Chi. L. Rev. at 712. Tra-

ditional redistricting principles, such as compactness,

operate to prevent such distorted district shapes. See

Daniel D. Polsby & Robert D. Popper, The Third Cri-

terion: Compactness as a Procedural Safeguard

Against Partisan Gerrymandering, 9 Yale L. & Pol’y

Rev. 301, 326—51 (1991).

A rule safeguarding against politics-based attacks

on redistricting plans that comply with traditional re-

districting principles would be sensible. Even in the

context of racial gerrymandering, this Court previ-

ously explained that “appearances do matter,” includ-

ing because compliance with these principles is an

“objective factor[ |” with which a court may evaluate

a map. See Shaw v. Reno, 509 U.S. 630, 647 (1993).

Given that political considerations are “inevitabl[e]”

in the redistricting process, Gaffney, 412 U.S. at 753,

it would be reasonable to hold that, as a matter of law,

there has not been “too much” partisanship, LULAC,

548 U.S. at 420 (plurality op.), when the map-drawers

have complied with traditional principles.

That this Court ultimately decided to permit ra-

cial-gerrymandering challenges against districts that

comply with traditional redistricting principles, Be-

thune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788,

799 (2017), does not suggest that a different approach

is inappropriate in politics-based cases (especially if

this Court permits statewide partisan-gerrymander-

ing claims, whereas such claims are not permitted in

the racial-gerrymandering context, see supra pp. 28—

30). “Race is an impermissible classification”; “[p]oli-

tics is quite a different matter.” Vieth, 541 U.S. at 307

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

omitted). A plan that complies with traditional redis-

tricting principles and yet is still predominantly mo-

tivated by race would be deeply constitutionally

flawed, Bethune-Hill, 137 S. Ct. at 799, including be-

cause of the sordid history of racial discrimination in

our country, Pena-Rodriguez v. Colorado, 137 S. Ct.

855, 867 (2017). No such special consideration applies

in the partisanship context, given the centrality of

traditional redistricting principles to the historical

conception of a partisan gerrymander.

In the present case, Plaintiffs did not argue below

that Act 43 failed to comply with traditional redis-

tricting principles. J.S. App. 250a—51a (Griesbach, J.,

dissenting). To the contrary, it was undisputed that

Act 43 generally matched the immediately prior

court-drawn map on these principles. See supra pp.

16, 21. That is reason enough to hold that Act 43 is

lawful.

B. Even if this Court concludes that Act 43’s com-

pliance with traditional redistricting principles does

not bar Plaintiffs’ lawsuit, the fact that Act 43 does

comply with these principles, that the Wisconsin Leg-

islature took politics into account as one of many le-

gitimate factors, and that Act 43’s results have proven

so similar to those that obtained under the 2002

court-drawn map, all demonstrate Act 43’s legality.

The record reveals that the Legislature’s map-

drawers took politics into account as one of many fac-

tors. The map-drawers first drew and then “locked”

in the Milwaukee districts to comply with the VRA.

See supra p. 14. Then, they carefully designed their

draft maps to comply with equal-population require-

ments, as well as traditional redistricting principles

such as compactness, contiguity, and respect for polit-

ical-subdivision lines. See supra pp. 14-15. Although

the map-drawers took political implications into ac-

count, that is unsurprising and unremarkable. “The

reality is that districting inevitably has and is in-

tended to have substantial political consequences,”

Gaffney, 412 U.S. at 753 (emphasis added), and has

since the Founding, see supra pp. 5-10. At the same

time, politics did not dominate the district lines that

the Legislature adopted as much as in the early Amer-

ican history examples discussed above, supra pp. 5-

10, in Bandemer, where the legislature adopted dis-

tricts with “irregular shape[s]” and a “peculiar mix of

single-member and multimember districts,” 478 U.S.

at 116 (plurality op.), or in Vieth, which included a

district that looked “like a dragon descending on Phil-

adelphia,” 541 U.S. at 339 (Stevens, J., dissenting) (c1-

tation omitted).

The map the Legislature ultimately adopted is

strikingly similar to the 2002 court-drawn map, in

terms of compliance with traditional redistricting

principles, district shapes, and results.

(Left, SA361 (Act 43); Right, SA363 (2002 court-

drawn map)).

The election results under these plans are also

comparable. Under the 2002 court-drawn map, Re-

publicans won 58 seats with 50.50% of the vote in

2002, 60 seats with 50% in 2004, 52 seats with 45.25%

in 2006, 46 seats with 46% in 2008, and 60 seats with

53.50% in 2010. »~4219—20, 223-24. Under Act 43,

they won 60 seats with 48.6% of the vote in 2012, and

63 seats with 52% of the vote in 2014. JA219—20, 224.

The similarities between the results under the

2002 court-drawn map and the results under Act 43

iUlustrate that the dissent below was correct when it

explained that, to achieve the proportional represen-

tation that Plaintiffs desire, Republicans would have

needed to “engage in heroic levels of nonpartisan

statesmanship” by abandoning their advantage under

the 2002 court-drawn map. J.S. App. 245a--46a. In-

deed, had Republicans intended only to retain their

advantage under the 2002 court-drawn map and thus

redistricted in the “most neutral way [a federal court]

could conceive,” Baumgart, 2002 WL 34127471, at

*7—-sticking as closely as possible to the prior, court-

drawn map, while “adjusting it for population devia-

tions,” id.—Plaintiffs would almost certainly con-

demn that map as too partisan.

The lengths that Republicans would have had to

go in order to satisfy Plaintiffs’ proportional represen-

tation preferences are further illustrated by Professor

Mayer’s Demonstration Plan. Mayer created his Plan

to drive down the efficiency gap, Dkt. 148:143, includ-

ing placing 37 incumbents (of which 26 were Republi-

cans) into districts with other incumbents, see Dkt.

149:112—18; Ex. 520 (interactive map).'!2 Mayer was

only able to achieve his roughly proportional repre-

sentation results for the 2012 election by drawing,

with the benefit of hindsight, 13 districts that he mod-

eled as narrow Democrat wins under the 2012

statewide vote totals. Dkt. 149:93-101; see Defs. Ex.

12 Interactive map available at http://arcg.is/OTTPeS.

568, Dkt. 147:27—28. With those narrowly Democrat

districts assumed, Mayer projected that Democrats

would have won 49 seats if they obtained 51.2% of the

vote in 2012, see SA309 (center column), a percentage

of the vote that, according to Professor Jackman’s cal-

culations, the Democrats did in fact approximate in

2012, JA224 (estimating that Democrats won 51.4%

of the vote in 2012). But the long-term consequences

of Mayer’s results-driven approach show how difficult

it is for Democrats to achieve proportional represen-

tation in Wisconsin given today’s political conditions.

If one removes from Mayer's swing analysis the unre-

alistic assumption that every 2012 incumbent would

run in 2014, see supra pp. 58—59, then Republicans

would have been projected to win 63 seats with around

52% of the vote under Mayer’s Plan in 2014. This is

because, under a uniform swing analysis of the type

that Gaddie employed (and that the district court re-

lied upon, see supra p. 21), Mayer’s 13 reverse-engi-

neered, narrowly Democrat districts from 2012 would

flip to Republican control in 2014 when Republicans

increased their statewide Assembly vote by 3.4%.

Dkt. 149:94—-101. Sixty-three seats is the same num-

ber that Republicans actually won in 2014 under Act

43, with an estimated 52% of the vote. See JA219—20,

224.

This Court has never found that a state legisla-

ture engaged in unlawful partisan gerrymandering.

Plaintiffs have presented this Court with no new, his-

torical-based redistricting principles and no new, ad-

ministrable test. They have, instead, recycled

arguments that this Court has already rejected, while

attacking a plan that complies with traditional redis-

tricting principles and is strikingly similar to the im-

mediately prior, court-drawn plan. Given the

jurisdictional and merits-based deficiencies in Plain-

tiffs’ claims, their lawsuit must be dismissed.

CONCLUSION

The judgment of the district court should be re-

versed.

Respectfully submitted,

BRAD D. SCHIMEL

Attorney Genera]

—__

KEVIN M. LEROY

Deputy Solicitor

General

State of Wisconsin

Department of Justice

17 West Main Street

Madison, WI 53703

tseytlinm @doj.state.wi.us

(608) 267-9323

MISHA TSEYTLIN

Solicitor General

Counsel of Record

RYAN J. WALSH

Chief Deputy

Solicitor General

Amy C. MILLER

Assistant Solicitor

General

BRIAN P. KEENAN

Assistant Attorney

General

July 2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.