# Amicus Curiae Brief — Gill v. Whitford, 138 S. Ct. 52 (2017) (No. 16-1161) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0740%3A34 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2017 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0740%3A34. Public record. Not legal advice.