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

RECORD

AND No. 16-1161

BRIEFS ~~

Sn The

Supreme Court of the Anited States

—® -

BEVERLY R. GILL, ET AL.,

Appellants,

———— a

V.

WILLIAM WHITFORD, ET AL.,

Appellees.

s

On Appeal From The United States District Court

For The Western District Of Wisconsin

¢

BRIEF OF THE GEORGIA STATE CONFERENCE

OF THE NAACP, LAVELLE LEMON, MARLON REID,

CELESTE SIMS, PATRICIA SMITH, AND

COLEY TYSON AS AMICI CURIAE

IN SUPPORT OF APPELLEES

S

KRISTEN CLARKE WILLIAM V. CUSTER

JON GREENBAUM JENNIFER B. DEMPSEY

EZRA D. ROSENBERG BRYAN CAVE LLP

Counsel of Record 1201 W. Peachtree St.

JULIE HOUK Atlanta, GA 30312

JOHN POWERS (404) 572-6600

LAWYERS’ COMMITTEE FOR bill.custer@bryancave.com

CIVIL RIGHTS UNDER LAW

1401 New York Ave., NW

Suite 400

Washington, DC 20005

(202) 662-8600

erosenberg@

lawyerscommittee.org

Counsel for Amici Curiae

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM of Congre™

TABLE OF CONTENTS

Page

ac i

pe, ili

INTEREST OF THE AMICI CURIAE................. 1

INTRODUCTION AND SUMMARY OF ARGU-

ae ecuesovedbabeneseaceaterds 2

REET RE I 6

|. Partisan Gerrymandering Claims Are

RES SR AS ES SE POO 6

Il. Invidious Intent to Minimize the Voting

Power of a Political Element Is a Judicially-

Manageable Standard ....................sccce00c00 12

A. Invidiousness Is an Accepted, Judicially-

Manageable Standard ....................2..+5 13

B. The Invidiousness Standard Must Be

Applied in a Manner Sufficiently Flex-

ible to Cover a Variety of Political Ger-

SE LORE YIN He 15

C. There Is a Settled Method of Proving

Invidiousness Applicable to Partisan

Gerrymandering Cases........................ 18

D. There Are Accepted Factors That Go to

Proof of Invidiousness .......................0 19

1. Discriminatory Impact ................... 20

2. The Use of Race to Achieve a Parti-

san End in Line-Drawing............... 21

3. Modifying a Plan Mid-Decade ........ 24

ii

TABLE OF CONTENTS — Continued

Page

III. A Robust Invidiousness Standard Allows

for Necessary Flexibility and Evolution of

Subsidiary Standard,............................0++ 25

iit ucinitintnspiindibebaddepesessccsintibitimnnnsiani 27

iii

TABLE OF AUTHORITIES

Page

CASES

Ala. Legislative Black Caucus v. Alabama, 135

| a ee ee 16

Ariz. State Legislature v. Ariz. Indep. Redistrict-

ing Comm’n, 135 S. Ct. 2652 (2015) ................. cece 6

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................4. 15

Baker v. Carr, 369 U.S. 186 (1962) ....... 6, 12, 13, 26, 27

Benisek v. Lamone, No. 1:13-cv-03233-JKB, 2017

WL 3642928 (D. Md. Aug. 24, 2017) ....................000.- 8

Bethune-Hill v. Va. State Bd. of Elections, 137

8 & i _, SS ener 16

Bray v. Alexandria Women’s Health Clinic, 506

a ectineeeaedgeiasiaeii 15

Burns v. Richardson, 384 U.S. 73 (1966).................... 17

Cano v. Davis, 211 F. Supp. 2d 1208 (C.D. Cal.

iT sehepe sadaintiiensieieeaeiietabipigpitbinliainebasiainaitigaaibebtiamarniniicl 23

Cooper v. Harris, 137 S. Ct. 1455 (May 22,

TIE ciielidniniedhdiindiodiliapennanihpadaiiandumdinentsiiedipiinessntibinie 16, 21

Davis v. Bandemer, 478 U.S. 109 (1986) ............ passim

Fortson v. Dorsey, 379 U.S. 433 (1965) ....................2.. 17

Gaffney v. Cummings, 412 U.S. 735 (1973).......... 14, 17

Georgia State Conference of the NAACP. et al. v.

State of Georgia, et al., ___ F. Supp. 3d ___,

2017 WL 3698494 (Aug. 25, 2017).................. passim

Griffin v. Breckenridge, 403 U.S. 88 (1971)................ 14

iv

TABLE OF AUTHORITIES — Continued

Page

Harris v. Arizona Indep. Redistricting Com’n,

I I a ceteiiiensenes 27

League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006).................00 19, 21, 22, 25

Luther v. Borden, 48 U.S. 1 (1849)...............cccceccceseeees 12

Marbury v. Madison, 5 U.S. 137 (1803)...................-+. 11

Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla.

SIE bike iisiiansisoeitisdisiesedleialicendecialiaaagialeaahiniteiaiabtelinhssibiiewetenates 23

Meyer v. Nebraska, 262 U.S. 390 (1923) ...............00. 24

Miller v. Johnson, 515 U.S. 900 (1995)...................008 22

N.C. State Conf. of NAACP v. McCrory, 831 F.3d

EE ES Aaa eve = 22

Packingham v. North Carolina, 137 S. Ct. 1730

EARS SEES CT EE OE Se 23

Patino v. City of Pasadena, 230 F. Supp. 3d 667

NE LESTE REE RSME ATO 23

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...... 23

Reynolds v. Sims, 377 U.S. 533 (1964)............ 14, 26, 27

Rodriguez v. Harris Cty., Tex., 964 F. Supp. 2d

ER EEE ER 23

Rogers v. Lodge, 458 U.S. 613 (1982)...........0cccccccceceeee 14

Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016)............ 22

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

Vv

TABLE OF AUTHORITIES — Continued

Village of Arlington Heights v. Metropolitan

Housing Development Corporation, 429 U.S.

URIS er ap. SR ce OES 4,18,19

White v. Weiser, 412 U.S. 783 (1973).............cccccececeeees 27

Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis.

ES aS AT te RS ae a NN ee 15, 16

Williams v. Rhodes, 393 U.S. 23 (1968)..............0..0000 13

CONSTITUTIONAL PROVISIONS

a niatsisaiomusaneunnbdidll 12

i aernlaaihnnetbatniien 7,23

CE ..sueenaenitaneiniente passim

LEGISLATIVE AUTHORITIES

EEE et Ea en eee 10,11

OTHER AUTHORITIES

Travis Fain & Laura Leslie, Redistricting crite-

ria call for partisan maps, no consideration of

PE, Wee, SEI BINED ecereecececsnsocessececsescesscosenesess 9

Justin Levitt, Intent Is Enough: Invidious Parti-

sanship in Redistricting, 59 Wm. & Mary L.

TT TOE 8

vi

TABLE OF AUTHORITIES — Continued

Ann E. Marimow & Josh Hicks, Judges in Md.

redistricting case decry politically motivated

electoral map, THE WASHINGTON Post, July 14,

GERI T ccvediyreviesanenccoesvesncceseesveseseseenunnuisessupinmaiogenevens

Laughlin McDonald, The Looming 2010 Census:

A Proposed Judicially-Manageable Standard

and Other Reform Options for Partisan Gerry-

mandering, 46 Harv. J. on Legis. 243 (2009).....

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

Criterion: Compactness as a procedural Safe-

guard against Partisan Gerrymandering, 9

Yale L. & Pol’y Rev. 301 (1991) ............c eee

Bill Torpy, TJorpy at Large: Democracy divided

should not stand, THE ATLANTA JOURNAL-

CONSTITUTION, Aug. 23, 201'7..........ccccccseresererseees

Page

1

INTEREST OF THE AMICI CURIAE’

The Georgia State Conference of the National As-

sociation for the Advancement of Colored People

(NAACP) was formed in 1941 to eliminate racial dis-

crimination through democratic processes and ensure

the equal political, educational, social, and economic

rights of all persons, in particular African-Americans.

The Georgia NAACP, Lavelle Lemon, Marlon Reid, Ce-

leste Sims, Patricia Smith, and Coley Tyson (Georgia

redistricting plaintiffs) have brought a redistricting

lawsuit in the United States District Court for the

Northern District of Georgia. See generally Georgia

State Conference of the NAACP, et al. v. State of Geor-

gia,etal.,__ F. Supp. 3d , 2017 WL 3698494 (Aug.

25, 2017). The Georgia redistricting plaintiffs’ claims

include the allegation that the 2015 mid-census cycle

redrawing of Georgia State House Districts 105 and

111 is an unconstitutional partisan gerrymander. On

August 25, 2017, a three-judge panel dismissed that

count for failure to provide a judicially-manageable

standard with respect to the alleged discriminatory ef-

fect. Id. at *12-13. The Georgia redistricting plaintiffs

have an interest in the instant appeal because it raises

foundational issues related to the justiciability and

standard of review for partisan gerrymandering cases,

! No counsel for a party has authored this brief in whole or

in part, and no counsel or any party made a monetary contribu-

tion intended to fund the preparation or submission of this brief.

No person other than amici or their counsel made a monetary con-

tribution to its preparation or submission. The parties have con-

sented to the filing of amicus briefs.

2

directly impacting the adjudication of their constitu-

tional rights.

*

INTRODUCTION AND

SUMMARY OF ARGUMENT

For over three decades, a majority of the Court has

ruled that partisan gerrymander cases are justiciable,

a conclusion consistent with the cognate apportion-

ment cases. There appears to be no precedent for this

Court to remove a category of cases from justiciability

to non-justiciability. To do so would be particularly

anomalous in the face of the universal acknowledge-

ment, among jurists and legal commentators, that

partisan gerrymandering is incompatible with our de-

mocracy because it denies voters a reasonable oppor-

tunity to elect representatives of their choice, and

allows representatives to disregard these voters.

Partisan gerrymanders, and their attendant evils,

come in many guises. It is therefore not only important

for this Court to hold that partisan gerrymander cases

are justiciable with respect to a statewide apportion-

ment, but also to recognize that the evils wrought by

this conduct may be accomplished subtly, with surgical

precision targeted at a single district to accomplish a

similarly anti-democratic end. In 2015, the Republi-

can-controlled Georgia legislature carefully manipu-

lated the lines of two swing districts in the State House

of Representatives, Districts 105 and 111. See Georgia

State Conf. of the NAACP v. State of Georgia, ___

3

F. Supp. 3d__, 2017 WL 3698494, at *2 (Aug. 25, 2017)

(three-judge panel). Elections in both districts were

very close in 2012 and 2014, and their demographics

were shifting to the disadvantage of the white, Repub-

lican incumbents. See id. at *2-3. The 2015 changes, in

aggregate, moved African-American voters out of and

white voters into both districts. There was a net gain

of 2,191 non-Hispanic white residents in District 105,

according to 2010 Census data, while there was a net

loss of 1,137 non-Hispanic African-American and 1,073

Hispanic residents in District 105. In District 111,

there was a net gain of 1,335 non-Hispanic white resi-

dents, and a net loss of 1,251 non-Hispanic African-

American and 277 Hispanic residents.’ Id.

This dilutive redistricting accomplished its goal.

In 2016, the white, Republican incumbents in both dis-

tricts narrowly defeated their black, Democratic chal-

lengers — in one case by 222 votes. Nevertheless, a

federal court has dismissed a partisan gerrymander-

ing claim against Georgia, on the basis that the plain-

tiffs failed to plead a “metric” by which to measure

discriminatory effect such as disproportionality, asym-

metry, or efficiency gaps. See Georgia State Conf. of the

NAACP, 2017 WL 3698494, at *12-13. However, these

metrics are relevant only to a statewide analysis and

are not applicable to a district-specific challenge. A

2 Amici are not asking the Court to adjudicate the Georgia

redistricting case, because it is not before the Court. Rather, they

are positing the facts alleged in that case, as if true, for the pur-

pose of providing the Court with a real-life example of a pinpoint

gerrymander so as to demonstrate one of the other forms of parti-

san gerrymanders.

4

pinpoint redistricting, however, can violate constitu-

tional principles as much as a statewide partisan ger-

rymander. Any standard or standards adopted by this

Court must be flexible enough so as to apply to both.

Accepting the justiciability of partisan gerrymander-

ing cases but adopting rules that effectively permit

subtler but equally pernicious forms of gerrymander-

ing would allow democracy to die by a thousand cuts.

The sole basis for doubt as to the justiciability of

partisan gerrymandering cases is the purported lack of

“judicially-manageable standards” to guide resolution

of these cases, a concept derived from the “political

question” cases. There is, however, an accepted, over-

arching, judicially-manageable standard applicable to

these cases: whether the line-drawing was done with

the invidious intent to minimize the voting strength of

a group of voters. This standard has been a staple of

Equal Protection apportionment cases. It is suffi-

ciently flexible to apply both to a statewide redistrict-

ing plan like that in Wisconsin and a pinpoint

redistricting plan like that in Georgia. Moreover, there

is an accepted method of proving invidiousness, apply-

ing the standards set forth in Village of Arlington

Heights. Moreover, accepted factors such as discrimi-

natory impact, the use of race to achieve partisan ends,

and modification of a plan mid-decade are indicia of in-

vidiousness in line-drawing. Indeed, clarification that

the use of race as a tool to effect a partisan gerryman-

der is an indicium of invidiousness is necessary to dis-

pel the notion that jurisdictions can use partisanship

as a defense to pernicious racial gerrymanders.

5

A robust invidiousness standard allows for the

necessary flexibility and the evolution of subsidiary

standards. Since partisan gerrymandering cases come

in different forms, there is no need for the Court to an-

nounce, in this case, the precise subsidiary standards

that must be met in all future cases. Indeed, it would

be a mistake to do so, because one subsidiary standard

cannot possibly fit all gerrymanders. The same subsid-

iary standards may not necessarily apply to a

statewide post-census redistricting as to a mid-decade

manipulation of a handful of districts. For example,

while quantitative measures such as disproportional-

ity, asymmetry, or an efficiency gap may be corrobora-

tive of invidiousness in a statewide redistricting, they

are not relevant in a pinpoint gerrymander of one or

a handful of districts, such as the one at issue in

Georgia.

The courts, guided by judicially-manageable

standards, may devise the subsidiary standards on a

case-by-case basis, as they evolve over time, precisely

the way other constitutional jurisprudence has devel-

oped. The stronger the evidence of invidiousness, the

sounder the basis for the Court to determine that the

impact of the line-drawing is caused by an unconstitu-

tional intent to minimize the voting strength of a par-

ticular political element.

6

ARGUMENT

I. Partisan Gerrymandering Claims Are Jus-

ticiable

For over three decades, a majority of the Court has

ruled that partisan gerrymander cases are justiciable.

Davis v. Bandemer, 478 U.S. 109, 118-27 (1986); Vieth

v. Jubelirer, 541 U.S. 267, 307-68 (2004) (Kennedy, J.,

concurring; Stevens, J., Souter, J., Ginsburg, J. Breyer,

J., dissenting). The justiciability of these cases is con-

sistent with the Court’s ruling in Baker v. Carr, 369

U.S. 186 (1962), that cases brought under the Four-

teenth Amendment challenging the constitutionality

of redistricting decisions did not present non-justicia-

ble “political questions.”

The plurality in Vieth, who opined that partisan

gerrymander claims were not justiciable because of the

lack of “judicially-manageable standards,” provided

not a single example where this Court had moved a

category of cases previously ruled justiciable into the

non-justiciable category. Amici are unaware of a com-

parable decision. Barring the judicial review of parti-

san gerrymandering claims would be particularly

anomalous because this Court has itself stated that

partisan gerrymanders are incompatible with demo-

cratic principles. Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (al-

terations in original) (quoting Vieth v. Jubelirer, 541

U.S. 267, 292 (2004) (plurality opinion)).

This is because such conduct goes “to the adequacy

of representation,” Bandemer, 478 U.S. at 125. From

7

the voter’s perspective, partisan gerrymandering has

been characterized as denying a particular group “its

chance to effectively influence the political process,” id.

at 132-33, and an effective opportunity to elect repre-

sentatives of their choice in violation of the Equal Pro-

tection Clause. Jd. at 167-68 (Powell, J., concurring and

dissenting). Justice Souter has described it as a “fair-

ness” issue, deviating from the constitutional standard

that each political group is supposed to have the same

chance to elect their representatives. Vieth, 541 U.S. at

343 (Souter, J., dissenting).

To others, the problem is “conceding to legislatures

a power of self-selection,” which is in tension with a

Constitution “whose most arresting innovation was

the dispersion of power.” Daniel D. Polsby & Robert D.

Popper, The Third Criterion: Compactness as a proce-

dural Safeguard against Partisan Gerrymandering, 9

Yale L. & Pol’y Rev. 301, 304 (1991). Justice Stevens

believes that the practice violates the decision-maker’s

duty to remain impartial. Vieth, 541 U.S. at 326 (Ste-

vens, J., dissenting). Justice Kennedy has suggested

that partisan gerrymandering may raise First Amend-

ment issues because political classifications are used

“to burden a group’s representational rights.” Vieth,

541 U.S. at 315 (Kennedy, J., concurring in the judg-

ment).

Regardless of whether the constitutional source of

the right is the First or the Fourteenth Amendment,

authorities agree that the consequences of partisan

gerrymandering are profound. Lawmakers may choose

their voters for the purpose of ensuring a near-certain

8

result, which allows elected officials to disregard the

citizenry’s needs and concerns. Laughlin McDonald,

The Looming 2010 Census: A Proposed Judicially-

Manageable Standard and Other Reform Options for

Partisan Gerrymandering, 46 Harv. J. on Legis. 243,

244 (2009). This in turn leads to the voters being de-

nied an “effective voice in policy making,” and the abil-

ity to protect their rights. 7d. Even worse, as one

commentator has said, “districts intentionally de-

signed to subordinate voters based on party preference

are more likely to actually suppress representation of

that political viewpoint, whether that suppression is

measurable or not.” Justin Levitt, Intent Is Enough: In-

vidious Partisanship in Redistricting, 59 Wm. & Mary

L. Rev. __, pp. 34-35 (forthcoming 2017).

Partisan gerrymandering is not going away, and it

is not owned by one particular political party. One fed-

eral judge has described Maryland Democrats’ con-

gressional redistricting plan as politically motivated

“nefarious activity.”* The three-judge panel hearing a

challenge to that plan agrees that the segregation

of voters by political affiliation for partisan ends is

“noxious” and “repugnant to representative democ-

racy.” Benisek v. Lamone, No. 1:13-cv-03233-JKB, 2017

WL 3642928, at *14 (D. Md. Aug. 24, 2017); see also id.

at *15 (Niemeyer, J., dissenting) (concluding that “the

* Ann E. Marimow & Josh Hicks, Judges in Md. redistricting

case decry politically motivated electoral map, THE WASHINGTON

Post, July 14, 2017, available at https://www.washingtonpost.com/

local/public-safety/judges-in-md-redistricting-case-decry-politically-

motivated-electoral-map/2017/07/14/33b44fc2-6814-11e7-9928-

22d00a47778f_story.html?utm_term=.1f85c92384f5.

9

record could not be clearer that the mapmakers specif-

ically intended to dilute the effectiveness of Republi-

can voters in the Sixth Congressional District and that

the actual dilution that they accomplished was caused

by their intent.”). In North Carolina, where the state

legislature must redraw congressional and state legis-

lative districts struck down as racial gerrymanders,

House Rules Chairman David Lewis has publicly sug-

gested that a partisan gerrymander is forthcoming,

stating that, “(t]he entire process of where lines are

drawn — every result from where a line’s drawn — will

be an inherently political thing.”

Partisan gerrymanders come in various guises,

although they perpetuate the same evils. While the in-

stant case centers on statewide redistricting, the Geor-

gia redistricting case focuses on a limited number of

districts. Of the 7,556 residents surgically moved from

Georgia State House District 105 into a neighboring

safe Republican district, 2010 Census data indicates

that 63.8 percent are African-American or Hispanic;

they were replaced by 7,380 residents, of whom only

35.6 percent are African-American or Hispanic. See

Georgia State Conf. of the NAACP, 2017 WL 3698494,

at *2. With respect to District 111, more than 30,000

residents were shuttled in and out of four adjoining

districts, increasing the white population percentage

* Travis Fain & Laura Leslie, Redistricting criteria call for

partisan maps, no consideration of race, WRAL, Aug. 10, 2017,

available at http//www.wral.com/redistricting-criteria-call-for-

partisan-maps-no-consideration-of-race/1687 1238/.

10

by 2.3 percentage points, and decreasing the non-

Hispanic African-American percentage by the same

amount. Jd. at *3. These changes, while relatively

small in comparison to a statewide apportionment, had

a decisive effect in countering the demographic shifts

in the populations of Districts 105 and 111. Jd. at *2-3.

The reason is obvious: the State House elections in

both districts in 2012 and 2014 were close and featured

racially polarized voting patterns, both districts were

experiencing an increase in the registered voter per-

centage due to demographic changes, and minority

voters are perceived as reliably supporting Demo-

cratic State House candidates. Id. The Republican-

dominated Georgia legislature did not want to risk the

incumbents in either district losing to a Democratic

challenger. The Legislature accomplished its goal by

splitting precincts and moving census blocks, for which

there are racial data but no electoral information. See

id. at *12. Moreover, reflecting the hurried and secret

nature of this legislation, the adoption of H.B. 566 did

not follow the normal legislative procedures. African-

American legislators serving on the House Legislative

and Congressional Reapportionment and the Senate

Reapportionment and Redistricting Committees were

excluded from the process of drawing and negotiating

the plans ultimately codified in H.B. 566. Id. at *2.

The November 2016 races for House District 105

and 111 were each close and proved just how effective

these changes could be in district elections. In 2016,

the white, Republican incumbents in both districts

again ran against African-American candidates who

11

were Democrats. Jd. at *2-3. Despite the adjustments

made by the legislature to tilt the outcome and the

presence of racially polarized voting patterns, the mar-

gins remained uncomfortably close. See id. In the elec-

tion for House District 105, the margin of victory was

so close that the race went to recount. The incumbent

ultimately defeated her challenger by only 222 votes.

Id. at *2. In House District 111, the incumbent’s mar-

gin of victory in that election was only 946 votes, an

even tighter result than in past races. Id. at *3. But for

H.B. 566, and the mid-decade redistricting, African-

American Democrats would likely have won both races

in these districts. Id. at *2-3.

The minority voters in these districts have there-

fore been deprived of their chance to have an effective

voice and to influence their representatives because of

their race and presumed political affiliation. It cannot

be the law that it is constitutional for one political

party to make a series of incremental changes de-

signed for one purpose and one purpose only: to stack

the deck by moving opposing party members out of one

district and into another whenever an election be-

comes close. That is the antithesis of a true democracy.

Unless partisan gerrymandering cases are justiciable,

the Court is consigning democracy to die by a thousand

cuts. Clearly, partisan gerrymandering is an area

where the Court must exercise its paramount author-

ity “to say what the law is.” Marbury v. Madison, 5 U.S.

137, 177 (1803).

12

II. Invidious Intent to Minimize the Voting

Power of a Political Element Is a Judicially-

Manageable Standard

The sole basis for doubt as to the justiciability of

partisan gerrymandering cases is the purported lack of

“judicially-manageable standards” to guide resolution

of these cases. See, e.g., Vieth, 541 U.S. 267, 277-90 (plu-

rality opinion). However, the overarching standard of

an invidious intent to minimize the voting strength of

a group of voters is a time-tested, judicially-managea-

ble standard.

The concept that justiciability is contingent on the

availability of judicially-manageable standards finds

its genesis in Baker v. Carr, 369 U.S. 186 (1962), where

the Court distinguished the “political questions” inher-

ent in cases brought under the Guaranty Clause’ from

those implicated in cases brought under the Four-

teenth Amendment, such as partisan gerrymandering

cases. In the former, the Court explained that it had

not been able to identify a “set of judicially manageable

standards which courts could utilize independently in

order to identify a State’s lawful government.” Jd. at

223.° Discrimination claims brought under the Four-

teenth Amendment, however, do not face this obstacle:

° The Guaranty Clause requires the federal government to

“guarantee to every State in the Union a Republican Form of Gov-

ernment.” U.S. Const. art. IV, § 4.

® The leading Guaranty Clause case in this respect is Luther

vu. Borden, 48 U.S. 1 (1849), where, in the face of the Dorr Rebel-

lion, the Court was asked to rule in effect that Dorr’s alternative

13

Nor need the appellants, in order to succeed

in this [Equal Protection] action, ask the

Court to enter upon policy determinations for

which judicially manageable standards are

lacking. Judicial standards under the Equal

Protection Clause are well developed and fa-

miliar, and it has been open to courts since the

enactment of the Fourteenth Amendment to

determine, if, on the particular facts, they

must, that a discrimination reflects no policy,

but simply arbitrary and capricious action.

369 U.S. at 226.

A. Invidiousness Is an Accepted, Judicially-

Manageable Standard

The settled benchmark for discrimination claims

brought under the Equal Protection Clause is invidi-

ousness. See, e.g., Williams v. Rhodes, 393 U.S. 23, 30-

31 (1968) (noting that “we have .. . held that ‘invidious’

distinctions cannot be enacted without a violation of

the Equal Protection Clause.”). This Court has consist-

ently applied this standard to various types of Equal

Protection challenges to redistricting, including racial

gerrymandering, one person one vote, and vote dilution

government was lawful, superseding Rhode Island’s charter gov-

ernment, because the latter limited the vote to landowners. Chief

Justice Taney, writing for the Court, rejected the claim, and, in so

doing, created the “political question” doctrine. The decision, of

course, predated the enactment of the Fourteenth Amendment.

14

claims.’ In the past, this Court has also suggested that

invidiousness is relevant to the analysis of partisan

gerrymandering claims.® A standard emphasizing the

offensiveness of the line-drawers’ conduct is consistent

with the Court’s traditional usage of “invidiously dis-

criminatory animus,” as acknowledged by Justice

Scalia in his discussion of that phrase by this Court in

Griffin v. Breckenridge, 403 U.S. 88 (1971):

The nature of the ‘invidiously discriminatory

animus’ Griffin had in mind is suggested both

by the language used in that phrase (“invidi-

ous ... [tlending to excite odium, ill will, or

envy; likely to give offense; esp., unjustly and

irritatingly discriminating,” Webster’s Second

International Dictionary 1306 (1954)) and by

” See, e.g., Reynolds v. Sims, 377 U.S. 533, 656-66 (1964) (a

redistricting plan impairs Fourteenth Amendment rights if it em-

ploys “invidious discriminations based upon factors such as race

or economic status.”); Rogers v. Lodge, 458 U.S. 613, 622 (1982)

(declining to “disturb the District Court’s finding that the at-large

system in Burke County was being maintained for the invidious

purpose of diluting the voting strength of the black population”).

8 Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (multimem-

ber districts “may be vulnerable” to constitutional challenges “if

racial or political groups have been fenced out of the political pro-

cess and their voting strength invidiously minimized.”); Davis v.

Bandemer, 478 U.S. 109, 124 (1986) (noting that “[d]iluting the

weight of votes because of place of residence impairs basic consti-

tutional rights under the Fourteenth Amendment just as much as

invidious discriminations based upon factors such as race... .”)

(quoting Reynolds, 377 U.S. at 565-66); Vieth v. Jubelirer, 541 U.S.

267, 307 (2004) (Kennedy, J., concurring in the judgment) (a redis-

tricting plan constitutes an unconstitutional partisan gerrymander

if political classifications “were applied in an invidious manner or

in a way unrelated to any legitimate legislative objective.”).

15

the company in which the phrase is found

(“there must be some racial, or perhaps other-

wise class-based, invidiously discriminatory

animus,” Griffin, 403 U.S., at 102,91 S. Ct., at

353 (emphasis added)).

Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263, 274 (1993).®

B. The Invidiousness Standard Must Be

Applied in a Manner Sufficiently Flexible

to Cover a Variety of Political Gerryman-

ders

The difference between the Wisconsin statewide

post-census redistricting and the mid-decade district-

specific manipulation that occurred in Georgia in 2015

demonstrates the need for flexibility in the applicabil-

ity of the invidiousness standard. For example, the dis-

trict court in this case employed a standard requiring

that the legislature possess “an intent to entrench a

political party in power” for the remainder of the dec-

ade, or “to make the political system systematically

® Similarly, invidiousness is the standard applicable to

claims of discriminatory burdens in violation of the First Amend-

ment, which the district court here, and Justice Kennedy have

posited as the appropriate constitutional basis for political gerry-

mandering claims. See Whitford v. Gill, 218 F. Supp. 3d 837, 883

(W.D. Wis. 2016); Vieth, 541 U.S. at 315 (Kennedy, J., concurring);

and see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[w]Jhere the

claim is invidious discrimination in contravention of the First. . .

Amendment[], our decisions make clear that the plaintiff must

plead and prove that the defendant acted with discriminatory

purpose.”).

16

unresponsive to a particular segment of the voters

based on their political preference.” Whitford, 218

F. Supp. 3d 837, 887 & n. 170, 896 (W.D. Wis. 2016).

Plaintiffs offered various statistical models to support

their claim, including an “efficiency gap” analysis

which quantified the “wasted” votes of the parties, i.e.,

those not needed to win a race and those wasted on

losing races, on a statewide basis.

The entrenchment standard and quantitative

methods such as the efficiency gap analysis may be ap-

plicable when adjudicating a statewide redistricting

plan. They are not necessarily applicable in smaller-

scale, subtler, yet equally invidious gerrymanders,

such as the pinpoint, mid-census redistricting enacted

for the purpose of making a handful of highly compet-

itive districts safer for incumbents of a political party

that was already enjoying a super-majority, as oc-

curred in Georgia in 2015. In cases such as that, the

evil is the simple practice of stacking the deck incre-

mentally in a particular district, a concept the Court

has recognized in its racial gerrymandering jurispru-

dence. See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1481-

82 (May 22, 2017) (North Carolina Congressional Dis-

tricts 1 and 12 were racially gerrymandered); Bethune-

Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799

(Mar. 1, 2017) (analyzing whether race predominated

in drawing 11 of 12 Virginia House of Delegate dis-

tricts); Ala. Legislative Black Caucus v. Alabama, 135

S. Ct. 1257, 1264 (2015) (holding that analyzing racial

gerrymandering in the context of the state “as a whole”

is legally erroneous and the district court erred in

17

concluding that race did not predominate in the crea-

tion of Alabama Senate Districts 7, 11, 22, or 26).

Where particular districts have been subjected to

partisan gerrymandering, a standard different than

“entrenchment” should apply. Fortunately, this Court

has already created that standard. In Burns v. Rich-

ardson, a one person, one vote case, the Court defined

a multi-member apportionment scheme as having a

discriminatory effect if it is shown that, “‘designedly or

otherwise ... under the circumstances of a particular

case, [it] would operate to minimize or cancel out the

voting strength of racial or political elements of the vot-

ing population’” (emphasis added). 384 U.S. 73, 88

(1966) (quoting Fortson v. Dorsey, 379 U.S. 433, 439

(1965)). This standard is consistent with this Court’s

pronouncements in partisan gerrymandering cases

that an electoral district “may be vulnerable” to consti-

tutional challenges “if racial or political groups have

been fenced out of the political process and their voting

strength invidiously minimized,” Gaffney v. Cum-

mings, 412 U.S. 735, 754 (1973), and that “each politi-

cal group in a State should have the same chance to

elect representatives of its choice as any other political

group.” Bandemer, 478 U.S. at 124.

A standard focused on an invidious intent to min-

imize or cancel out the votes of certain elements of the

voting population based on their political association

is more rigorous than the “mere intent to disad-

vantage” standard offered by the plurality in Davis v.

18

Bandemer, 478 U.S. 109 (1986).'° It also provides

courts with the flexibility needed to apply to both

statewide or pinpoint gerrymanders because the af-

fected “elements of the voting population” can be lo-

cated in a single district or throughout the state.

The Court should set a standard in this statewide

gerrymandering case that is sufficiently broad and

flexible to apply to cases such as that presented by

Georgia’s pinpoint gerrymander. If not, the Court

should make clear that the unique circumstances sur-

rounding pinpoint redistricting necessitate a different

framework from the one used in statewide gerryman-

dering cases.

C. There Is a Settled Method of Proving

Invidiousness Applicable to Partisan

Gerrymandering Cases

Not only has the overarching legal standard of

invidiousness been firmly established in discrimina-

tory intent claims, but this Court has set clear guide-

lines for approaching proof of invidiousness through

both direct and circumstantial evidence. Village of Ar-

lington Heights v. Metropolitan Housing Development

Corporation, 429 U.S. 252, 266-68 (1977). These factors

include the impact of the official action, the specific se-

quence of events leading up to the challenged decision,

departures from the normal procedural and substan-

tive departures from typical methods and manners of

© Vieth, 541 U.S. at 284 (plurality opinion) (characterizing

the standard offered by the Bandemer plurality).

19

decision-making, and legislative and administrative

history, including contemporary statements by mem-

bers of the decision-making body. Id.

Having regularly applied the Arlington Heights

factors, courts are seasoned in delving into the invidi-

ousness of alleged discriminatory practices. Invidious-

ness bears all of the hallmarks of a judicially-

manageable standard.

D. There Are Accepted Factors That Go to

Proof of Invidiousness

Case law provides ample examples of the sort of

objective facts that can contribute to a finding of invid-

ious intent to discriminate on account of political affil-

iation. These include not only express statements of

decision-makers to that effect, but also trial-tested ev-

idence such as disproportionate impact, using race as

a proxy for party, deviating from traditional districting

principles, redistricting in the middle of a census cycle,

and other forms of manipulation that indicate the de-

cision-maker strayed from typical procedures or made

substantive choices that furthered no legitimate gov-

ernmental interest. See, e.g., League of United Latin

American Citizens v. Perry, 548 U.S. 399, 422 (2006)

(addressing appellants’ contention that the Texas Leg-

islature “intentionally sought to manipulate” districts

through their population variances). Of course, not all

of these elements are going to be present in every case,

but some salient factors are laid out below.

20

1. Discriminatory Impact

Disproportionality in the results of statewide elec-

tions — i.e., the gap between a party’s vote share and

seat share in a state — does not in of itself prove an

unconstitutional statewide partisan gerrymander.

Bandemer, 478 U.S. at 130-31. However, when com-

bined with other factors, it can support the conclusion

of an invidious intent to minimize the voting strength

of a discrete political element. The same is true of other

statewide measures of impact such as asymmetry (the

extent to which the percent of votes of one party does

not translate to the percent of votes achieved by the

opposing party) or the efficiency gap.

Such statewide measures of impact, however, are

not applicable to pinpoint gerrymanders, as the meas-

ure of impact corroborative of invidiousness does not

involve a comparison with other districts, but only the

actual, or projected election result. The Georgia pin-

point redistricting serves as an example. In 2012 and

2014, white, Republican incumbents barely beat Black

Democrats in districts where the minority registered

voter percentage was steadily increasing due to demo-

graphic changes. In 2015, the Legislature responded by

cutting neighborhoods of Black Democratic voters out

of those districts. See Georgia State Conf. of the

NAACP, 2017 WL 3698494, at *12. A quantification of

statewide disproportionality, asymmetry, or efficiency

gap would not instruct on the discriminatory impact of

the line-drawing. Rather, the proof of impact would be

in the form of past election results and projected future

21

election results, i.e., showing that elections were tight,

that specific groups were targeted for exclusion or in-

clusion in the district, and that the line-drawing party

continued to win, or could be projected to win. See

Bandemer, 478 U.S. at 141 (plurality opinion) (combin-

ing the district configurations “with vote projections to

produce future election results. . . .”).

2. The Use of Race to Achieve a Parti-

san End in Line-Drawing

The use of race as a proxy for partisan goals has

been a recurring theme in redistricting litigation over

the years, which shows no sign of abating.’ Unfortu-

nately, this is precisely what the Georgia Legislature

See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1476-77 (May

22, 2017) (rejecting State claim that politics alone drove drawing

of congressional! district, not race); LULAC v. Perry, 548 U.S. 399,

440 (2006) (rejecting State’s claim that redrawing of Congres-

sional district was primarily for political, not racial, reasons);

Perez v. Abbott, No. 5:11-cv-00360-OLG-JES-XR, 2017 WL

3495922 at *41 (W.D. Tex. Aug. 15, 2017) (describing State’s pur-

pose of adding significant population from Travis County into

Congressional District 35 was “to use race as a tool for partisan

goals.”); id., 2017 WL 1450121 at *14-16 (W.D. Tex. Apr. 20, 2017)

(rejecting State’s excuse that increasing or maintaining the Span-

ish surname voter percentage while simultaneously and inten-

tionally minimizing Latino voters’ ability to elect in State House

Districts 78 and 117 was partisan gerrymandering”); id., 2017 WL

962947, at *59 (W.D. Tex. Mar. 10, 2017) (describing “mapdrawers

as willing to disadvantage minorities to gain partisan advantage

.. and that they were willing to use race to gain partisan ad-

vantage . . . and limit the number of Democrat districts overall”).

22

did when redrawing Georgia State House of Repre-

sentatives Districts 105 and 111 in 2015. See Georgia

State Conf. of the NAACP, 2017 WL 3698494, at *12.

Employing the use of race to further partisan in-

terests is per se evidence of an invidious politically dis-

criminatory intent. This may occur by using racial data

as a proxy for partisan performance, intentionally

packing or cracking minority communities, using arbi-

trary numerical racial thresholds not based on evi-

dence of minority voters’ ability to elect, splitting

voting precincts or voting tabulation districts and us-

ing racial data, artificially inflating the minority per-

centage in a low-turnout district to benefit the other

political party, or other means.

It is impurtant for the Court to clarify that using

race as a proxy for party is an indicium of invidious-

ness in partisan gerrymander cases, because courts

have not been uniform in their response to the defense

of partisanship in racial discrimination cases.’

4 See, e.g., Miller v. Johnson, 515 U.S. 900, 914 (1995) (stat-

ing that the “use of race as a proxy” for “political interest(s)” is

“prohibit|ed]”); League of United Latin American Citizens v. Perry,

548 U.S. 399, 440 (2006) (finding that the Texas redistricting plan

bore “the mark of intentional discrimination” on the basis of race

when the legislature used racial considerations to achieve a par-

tisan result); Veasey v. Abbott, 830 F.3d 216, 241 (5th Cir. 2016) (en

banc) (discussing that the rapid increase in minority populations

in Texas such that “the party currently in power is ‘facing a de-

clining voter base and can gain partisan advantage’ through a

strict voter [ID law” was evidence that could support a finding of

intentional discrimination based on race); N.C. State Conf. of

NAACP v. McCrory, 831 F.3d 204, 222 (4th Cir. 2016) (stating that

“intentionally targeting a particular race’s access to the franchise

23

Discriminating on the basis of race to achieve a parti-

san goal should not be a defense against a racial dis-

crimination claim. Even if partisanship were a

legitimate goal, targeting a suspect class as the means

of achieving that goal is unconstitutional. See, e.z.,

Packingham v. North Carolina, 137 S. Ct. 1730, 1732

(June 19, 2017) (holding that a North Carolina law pre-

venting sex offenders from using social media for the

purpose of protecting vulnerable victims was unconsti-

tutional because it was unnecessarily burdensome on

First Amendment rights); Price Waterhouse v. Hopkins,

because its members vote for a particular party, in a predictable

manner, constitutes discriminatory purpose”); Perez v. Abbott,

2017 WL 962947, at *63 (W.D. Tex. Mar. 10, 2017) (finding that

the redistricting plan was intentionally discriminatory because

the legislature drew the plan on the basis of race “using race as a

proxy for voting behavior”); Patino v. City of Pasadena, 230

F. Supp. 3d 667, 727-28 (S.D. Tex. Jan. 6, 2017) (finding that “(bly

clearly and explicitly intending to diminish Latinos’ voting power

for partisan ends, Pasadena officials intentionally discriminated

on the basis of race”); contra Rodriguez v. Harris Cty., Tex., 964

F. Supp. 2d 686, 804 (S.D. Tex. 2013) (declining to find racial con-

siderations “steered the redistricting process” because “proclivi-

ties” of Latinos to vote Democratic and Anglos to vote Republican,

“without more, cannot transform partisanship into race discrimi-

nation”); Cano v. Davis, 211 F. Supp. 2d 1208, 1248 (C.D. Cal.

2002) (California legislature had non-racial goals such as “pro-

tecting incumbents” and “advancing partisan interests” and the

redistricting plan was therefure not intentionally discriminatory);

Martinez v. Bush, 234 F. Supp. 2d 1275, 1296-98 (S_D. Fla. 2002)

(finding that the “Republican-controlled legislature intended to

maximize the number of Republican congressional and legislative

seats through the redistricting process” and engaged in a “raw ex-

ercise of majority legislative power” but did not intentionally dis-

criminate on the basis of race).

24

490 U.S. 228, 241 (1989) (identifying the standard un-

der Title VII when a plaintiff proves that her gender

played a motivating part in an employment decision);

Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (Nebraska

law prohibiting teaching any language other than Eng-

lish through eighth grade, enacted to promote civic de-

velopment, violated the Fourteenth Amendment). In

the context of a partisan gerrymandering claim, it is

itself an indication that the jurisdiction is acting un-

constitutionally.

3. Modifying a Plan Mid-Decade

If a legislature modifies a legitimately drawn, leg-

islatively-enacted plan compliant with the one person,

one vote principle, and enacts an unnecessary mid-

census redistricting plan solely for the purpose of mak-

ing swing districts less competitive to the benefit of the

party in power, that is an indicium of an invidious par-

tisan motive.

Again, the 2015 Georgia State House redistricting

plan is an instructive example of a mid-census redis-

tricting enacted with such an invidious intent. There,

the Georgia Legislature needlessly redrew district

boundaries that complied with the one person, one vote

principle and had survived scrutiny by the Depart-

ment of Justice. See Georgia State Conf. of the NAACP,

2017 WL 3698494, at *2. Its purpose in doing so was to

move the goal posts to help white Republican incum-

bents who had narrowly defeated black Democratic

challengers in swing districts that were experiencing

25

an increase in minority voter registration percentage

due to demographic changes.** Jd. at *2-3. In the case

of State House District 105, Representative Joyce

Chandler won by 554 votes in 2012 and 789 votes in

2014, and has since acknowledged that her district is

becoming increasingly “diverse,” while adding that the

Legislature acted without her asking for any special

redistricting help."* In the 2016 election, under the new

lines, Chandler prevailed by 222 votes. See id. at *2.

Ill. A Robust Invidiousness Standard Allows

for Necessary Flexibility and Evolution of

Subsidiary Standards

Partisan gerrymandering claims do not present an

absence of judicially-manageable standards, but, ra-

ther, as Justice Kennedy has termed it, a search for

% While this Court confirmed in League of United Latin

American Citizens v. Perry (LULAC) that the Constitution does

not prohibit mid-decade redistricting per se, mid-decade modifi-

cations of the swing districts by the same party that drew the

lines merit scrutiny, particularly when that party has already

achieved super-majority status, the facts of the Georgia redistrict-

ing are distinguishable from those in LULAC uv. Perry. In that

case, the Supreme Court stated that (1) partisan gain was not

necessarily the “sole motivation” for the entire redistricting plan,

id. at 417; (2) the Republican legislature was replacing a court-

ordered plan, which had previously entrenched the Democrats, a

party on the verge of minority status, id. at 416, 419; and (3) the

new plan made the “party balance more congruent to statewide

party power.” Id. at 419.

'* Bill Torpy, Torpy at Large: Democracy divided should not

stand, THE ATLANTA JOURNAL-CONSTITUTION, Aug. 23, 2017, avail-

able at http:/Awww.myajc.com/news/local/torpy-large-democracy-

divided-should-not-stand/KaxF VEPXsuxkBGpUe7BpeK/.

26

“subsidiary” standards. Vieth, 541 U.S. at 314. In Jus-

tice Kennedy’s view, that search may be for ways of

quantifying the effect of the gerrymander. And, as dis-

cussed above, in some cases such quantification may

corroborate the invidiousness of the line-drawing.

However, because partisan gerrymander cases come in

so many different forms, there is no need for the Court

to announce a single standard — other than invidious-

ness — to govern these cases.

Indeed, it would be a mistake to do so, because one

subsidiary standard cannot possibly fit all gerryman-

ders. The same subsidiary standards cannot apply to a

statewide redistricting on the heels of a census cycle

that will apply to a mid-decade manipulation of the

lines of a single district. The courts, guided by general

standards, may devise the subsidiary standards on a

case-by-case basis, as they evolve over time, precisely

the way other constitutional jurisprudence has devel-

oped.

This is what happened in the cognate area of one

person, one vote cases after Baker v. Carr, 369 U.S. 186

(1962). In Reynolds v. Sims, 377 U.S. 533 (1964), the

Court declined to employ a specific substantive stan-

dard in the course of concluding that Alabama’s appor-

tionment plans violated the Equal Protection Clause,

instead simply declaring that “the deviations from a

strict population basis are too egregious . . . to be con-

stitutionally sustained.” 377 U.S. at 568-69. While

Chief Justice Warren declared in Reynolds that “math-

ematical nicety is not a constitutional requisite” when

adjudicating one person, one vote cases under the

27

Equal Protection Clause, id. at 569, the Court would

later reverse course and determine that certain nu-

merical thresholds were in fact appropriate.” By not

defining the limits of the one person, one vote principle

at the outset, Carr and Reynolds gave lower courts lat-

itude to rein in severe malapportionment in the short

term while allowing the Court to develop workable and

easily-communicable legal standards in future cases.

In this context, the focus on the invidiousness of

the decision making relieves the courts of the need to

adopt a one-size-fits-all set of subsidiary standards.

The stronger the evidence of invidiousness, the

sounder the basis for the Court to determine that the

impact of the line-drawing is caused by an unconstitu-

tional intent to minimize the voting strength of a par-

ticular political element.

+

CONCLUSION

Partisan gerrymanders are incompatible with our

democracy and deny voters a meaningful opportunity

to elect candidates of their choice. For the foregoing

** Harris v. Arizona Indep. Redistricting Com’n, 136 8. Ct.

1301, 1305 (2016) (holding that “[b]ecause the maximum popula-

tion deviation between the largest and the smallest district is less

than 10%, the appellants cannot simply rely upon the numbers to

show that the [state legislative] plan violates the Constitution.”);

White v. Weiser, 412 U.S. 783, 790 (1973) (even small congressional

district population deviations are allowed only in “unavoidable”

instances).

28

reasons, the Court should hold that partisan gerry-

mandering claims are justiciable and subject to a

judicially-manageable standard. That standard should

be based on the principle that invidious discrimination

against a group of voters based on their presumed po-

litical persuasion is prohibited under the Constitution.

The invidiousness standard is widely accepted and can

be applied in a sufficiently broad and flexible manner

to cover the variety of gerrymanders being employed

by political parties today, including the “pinpoint” ger-

rymander enacted by the Georgia legislature in 2015.

Respectfully submitted,

KRISTEN CLARKE WILLIAM V. CUSTER

JON GREENBAUM JENNIFER B. DEMPSEY

EzRA D. ROSENBERG BRYAN CAVE LLP

Counsel of Record 120] W. Peachtree St.

JULIE HOUK Atlanta, GA 30312

JOHN POWERS (404) 572-6600

LAWYERS’ COMMITTEE FOR bill.custer@bryancave.com

CIvIL RIGHTS UNDER LAW

1401 New York Ave., NW,

Suite 400

Washington, DC 20005

(202) 662-8600

erosenberg@

lawyerscommittee.org

Counsel for Amici Curiae