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

FILED

SEP -5 2017

BRIEFS No. 16-1161

IN THE

Supreme Court of the United States

BEVERLY R. GILL, et al.,

Appellants,

Vv.

WILLIAM WHITFORD, et al.

Appellees.

On Appeal from

the United States District Court

for the Western District of Wisconsin

BRIEF OF AMICI CURIAE LAW PROFESSORS

IN SUPPORT OF APPELLEES

Pamela S. Karlan

Counsel of Record

Jeffrey L. Fisher

David T. Goldberg

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

karlan@stanford.edu

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

ee Be cts ictscncnsevrsccscvessesessoesvesees ii

INTEREST OF AMICI CURIAE .....................002222..04- 1

re 2

a ins ink lca alia ealiatandeniniantlintionsinnies 4

I. The absence of a judicially enforced

constraint on partisan gerrymandering has

not prevented, and will not prevent, federal

courts from facing decades of redistricting

litigation driven by partisan concerns ................. 6

II. The absence of a _ straightforward

mechanism for adjudicating claims of

unconstitutional partisan gerrymandering

has led to troubling distortions of other

constraints on redistricting. ....................0...:.0606- 20

A. The absence of a_ straightforward

partisan gerrymandering claim has

distorted one-person, one-vote ..................... 20

B. The absence of a_ straightforward

partisan gerrymandering claim has

distorted doctrines designed to address

racial discrimination in redistricting........... 27

III. Recognizing a judicially enforceable claim

against partisan gerrymandering will not

unjustifiably constrain states’ redistricting

ERE RAEI SEALE IER: SAC a nee Oe 31

I diicirss:cssnenuscensisseniininieinestpiaieidednchinssamtensiies 34

‘3

TABLE OF AUTHORITIES

Page(s)

Cases

Anne Arundel! County Republican Central

Committee v. State Administrative Board of

Election Laws,

781 F. Supp. 394 (D. Md. 1991) (three-judge

court), summarily aff'd, 504 U.S. 938 (1992) .. 24, 25

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm'n,

a Ee 4, 33

Ashwander v. Tenn. Valley Auth.,

i ceeiinseinisiatiananni 30

Balderas v. Texas,

2001 WL 36403750 (E.D. Tex. Nov. 14, 2001)

(three-judge court), summarily aff'd, 536 U.S.

Baldus v. Members of Wis. Gov’t Accountability

Bd.,

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

ELE RNC STS ee ae 11

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

dl descbbcacbenanenestionton e)

Brown v. Thomson,

ERE AEN Re Rae a eae me 8, 22

Bush v. Vera,

ERE TEE eR acne eee 28

Common Cause v. Rucho,

2017 WL 876307 (M.D.N.C. 2017) (three-

SE idl chai iiss Rianniphicncanddcbanmianajedsinenpnesdesnoneioh 16

iii

Connor v. Finch,

ne ncaa pies mimmhanebenen 26

Cooper v. Harris,

ee passim

Cox v. Larios,

BOW UF, BOT CRBDE).. nce. ccesccesecesccesccesecesccseses 13, 23

Davis v. Bandemer,

IE cee eRe ar 5, 14

Easley v. Cromartie,

a tial beneipeadeneibe 16

Evenwel vy. Abbott,

en occ cdnnesiencnqedunnsetvooesedocedpnsrenes 8

Fortson v. Dorsey,

cn ciscernnnnsninbesinbnesnccenenh 4, 20, 28

Gaffney v. Cummings,

SE I cspascncossccacctansscoanesoson 5, 7, 20, 33

Georgia v. Ashcroft,

ne ictcinld ictiecniosnnensanbenbentedila 29

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

ET 23

Hulme v. Madison County,

188 F. Supp. 2d 1041 (S.D. Ill. 2001).................... 23

Hunt v. Cromartie,

ss edunlapaendoniionniiees 15

Karcher v. Daggett,

Ee 7, 8, 21, 26

Larios v. Cox,

300 F. Supp. 2d 1320 (N.D. Ga. 2004) (three-

judge court), summarily aff'd, 542 U.S. 947

Aa sis ecesnceeceblclthdiianlisdepiseniinessioacadianiecitteeiia 12, 13, 23

iv

Lucas v. Forty-Fourth Gen. Assembly,

ee ee. Pe eR ccdcecisansiccneecesnensntsiansiindeniainnadal 20

LULAC v. Perry,

549 U.S. 399 (2006).............cccccsserceresees 17, 18, 32, 34

Mo. State Conference of the NAACP v.

Ferguson-Florissant Sch. Dist.,

201 F. Supp. 3d 1006 (E.D. Mo. 2016)................... 30

Nevett v. Sides,

571 F.2d 209 (5th Cir. 1978), cert. denied, 446

Sa, Ee icsscntcnseyeonecstnatiatéaiaedieeiamianihadiiel 21

Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1,

ee is Pee GIT Ponericcnenecesonsccconrenscsoninessossnnaibonniial 28

Patino v. City of Pasadena,

230 F. Supp. 3d 667 (S.D. Tex. 2017), stay

denied pending appeal, 677 F. App’x 950 (5th

CARING. Gee i idtysecsnéccccsscvecesonioesetensconiansezenaaisaaiamtane 30

Perez v. Abbott,

SA-11-CV-360, 2017 WL 1450121 (W.D. Tex.

Apr. 20, 2017) (three-judge court) .................. 23, 24

Pope v. Blue,

809 F. Supp. 392 (W.D.N.C. 1992) (three-

judge court), summarily aff'd, 506 U.S. 801

Radogno v. Ill. State Bd. of Elections,

2011 WL 5025251 (N.D. Ill. 2011) (three-judge

GIES eeestttcscsnersesansvcstscecessnesvtisiitimeniaiainmammananen 19

Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of

Elections,

827 F.3d 3838 (4th Cir. 2016)............cccccccccosssscccssees 23

Reynolds v. Sims,

SUE Wh Ce icensereicavessccnsmeinaiinniil 7, 20, 21, 25

Rogers v. Lodge,

SE ccctcntsacccesscscsscncescoosoes es ta 10

Thornburg v. Gingles,

EE 10

Session v. Perry,

298 F. Supp. 2d 451 (E.D. Tex. 2004) (three-

judge court), vacated and remanded in light of

Vieth v. Jubelirer, 543 U.S. 941 (2004)........... 17, 29

Shaw v. Hunt,

ce 15, 27

Shaw v. Reno,

EE 15, 27, 32

Tennant v. Jefferson Cty. Comm’n,

EE ee 7,8

Terrazas v. Slagle,

821 F. Supp. 1162 (W.D. Tex. 1993) (three-

Tala cise ctestetichensassomesnensntonsenseccoonss 17

United States v. Hays,

a escemnlciinesits is)

Vieth v. Jubelirer,

541 U.S. 267 (2004) .......cccccccecscoseeeseceseeeeevereees passim

Vieth v. Pennsylvania,

188 F. Supp. 2d 532 (M.D. Pa. 2002) (three-

ec oa a nciscnipsicscnmieenqnasncuneaacesoose 22

Vieth v. Pennsylvania,

195 F. Supp. 2d 672, 675 (M.D. Pa. 2002)

(three-judge court), appeal dismissed as moot,

A 8, 21

Vieth v. Pennsylvania,

241 F. Supp. 2d 478 (M.D. Pa. 2003) (three-

judge court), aff'd, 541 U.S. 267 (2004)................. 22

Wesberry v. Sanders,

a ecaeaiaiel 7

Whitcomb v. Chavis,

i ect enteiuiaaiilial 21

White v. Regester,

ER an oem me 10

Constitutional Provisions

Ses I GIES CIEIU cnccccccccescccascscccvecnscussoenes passim

8, TRESS mae eee 7

Statutes

Voting Rights Act, § 2, 52 U.S.C. § 10301........ passim

Other Authorities

Cullen, Morgan & Michelle Davis, 5 Trends

Shaping Redistricting, State Legislatures

te 11

Issacharoff, Samuel, Gerrymandering and

Political Cartels, 116 Harv. L. Rev. 593 (2002) .... 27

Levitt, Justin, Litigation in the 2010 Cycle, All

About Redistricting,

http://redistricting.lls.edu/cases. php...................... 11

Madonna, Terry & Michael Young, Opinion, Is

Court Changing Rules on Redrawing Political

Maps?, Morning Call (Allentown, Pa.)

vii

Pildes, Richard H., The Supreme Court, 2003

Term—Foreword: The Constitutionalization

of Democratic Politics, 118 Harv. L. Rev. 28,

ESE RE ES SRR SEP ESCES Eve a tare 32

INTEREST OF AMICI CURIAE’

Amici are law professors who study legal

regulation of the political process. They are among the

many scholars who have spent a considerable amount

of time thinking, writing, and teaching issues related

to redistricting and fair representation.

Based on this expertise, and on careful review of

this Court’s decisions, amici argue in this brief that

the Court should hold that partisan gerrymandering

claims are justiciable. Amici join this brief solely on

their own behalf and not as representatives of their

universities. Amici are:

Samuel R. Bagenstos

Frank G. Millard Professor of Law

University of Michigan Law School

Richard Briffault

Joseph P. Chamberlain Professor of Legisiation

Columbia Law School

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of

Law

University of California, Berkeley School of Law

Henry L. Chambers, Jr.

Austin E. Owen Research Scholar & Professor of Law

University of Richmond School of Law

‘ Pursuant to Rule 37.6, counsel for amici states that no

counsel for a party authored this brief in whole or in part, and

that no person other than amici or its counsel made a monetary

contribution to the preparation or submission of this brief.

Se ere mew Clee cae eo ee CED Cree

the Clerk of the Court.

Joshua A. Douglas

Robert G. Lawson & William H. Fortune Associate

Professor of Law

University of Kentucky College of Law

Joseph Fishkin

Professor of Law

University of Texas, Austin

Rebecca Green

Professor of Practice

William & Mary Law School

Michael Halberstam

Independent Scholar

Michael S. Kang

Thomas Simmons Professor of Law

Emory University Law School

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public

Interest Law

Stanford Law School

Franita Tolson

Professor of Law

University of Southern California Gould School of Law

SUMMARY OF ARGUMENT

The question posed by this case is not whether

excessively partisan redistricting maps violate core

constitutional principles. They do, and this Court has

already said as much. Rather, the question is what

courts should do when faced with such maps.

Notwithstanding this Court's reluctance to

impose a direct judicially enforceable constraint on

3

partisanship, partisan gerrymandering claims are

being litigated all the time. They simply get litigated

under other causes of action, whether it is one-vote,

one-person doctrine; racial gerrymandering doctrine

under the Equal Protection Clause; or vote dilution

doctrine under the Voting Rights Act. In the course of

adjudicating these claims, courts often cannot escape

the need to evaluate the partisan intent and effect of a

challenged plan.

Having litigants route their complaints about

partisan gerrymandering through these adjacent

doctrines inevitably distorts these other areas of law.

Using minor population deviations to adjudicate

partisan disputes wastes judicial resources and

decreases public confidence. Forcing what are

fundamentally partisan disputes to be litigated as

claims about race discrimination inflicts the very

harm (excessive race consciousness) the Shaw doctrine

was designed to combat. And it can undermine

effective enforcement of the Voting Rights Act. Worse

yet, to the extent jurisdictions advance a politics-not-

race defense to Shaw claims, the lack of a justiciable

partisan gerrymandering claim puts courts in the

unseemly position of affirmatively upholding

unconstitutional activity. Recognizing a straightfor-

ward claim for unconstitutional partisan gerryman-

dering would serve interests in doctrinal coherence

and integrity.

Finally, recognizing a claim for excessive

partisan gerrymandering would not strip states of

their proper role in drawing legislative districts.

States will still have more than enough discretion in

drawing districts. But excessive partisanship is not a

qd

goal that states should be permitted, or encouraged, to

embrace.

ARGUMENT

There has been “time enough” to consider whether

districting plans that “operate to minimize or cancel

out the voting strength” of “political elements of the

voting population” justify judicial intervention.

Fortson v. Dorsey, 379 U.S. 433, 439 (1965). This

Court has already “recognized” that excessive partisan

gerrymanders “[are incompatible] with democratic

principles.” Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm'n, 135 S. Ct. 2652, 2658 (2015)

(quoting Vieth v. Jubelirer, 541 U.S. 267, 292 (2004)

(plurality opinion));? see also Gaffney v. Cummings,

* All nine Members of the Vieth Court accepted the

proposition that excessive partisan gerrymandering violates the

Constitution. Chief Justice Rehnquist and Justices O’Connor,

Scalia, and Thomas formed the plurality whose opinion contained

the statement quoted in Arizona Independent Redistricting

Justice Kennedy, concurring in the judgment, wrote that an

apportionment statute drawn “so as most to burden Party X's

rights to fair and effective representation, though still in accord

with one-person, one-vote principles” would “surely” violate the

Conatitution. Vieth, 541 U.S. at 312.

The four dissenting Justices in Vieth not only took the

position that excessive partisan gerrymanders can violate the

Constitution and are justiciable, but concluded that the

Pennsylvania congressional districting plan before the Court

involved such a violation. Justice Stevens stated that when “the

predominant motive of the legislators who designed” a district is

“to discriminate against a political minority, that invidious

purpose should invalidate the district.” Id. at 336 (Stevens, J.,

dissenting). Justice Souter, joined by Justice Ginsburg, stated

5

412 U.S 735, 753-54 (1973) (what is done by “those who

redistrict and reapportion” to “allocate political power”

cannot be “wholly exempt from judicial scrutiny” if

political groups have their voting strength “invidiously

minimized”).

The question posed by this case is what to do

about a violation of core constitutional principles. The

history of litigation, both before and after this Court’s

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

and Vieth, shows that other doctrines governing

redistricting make it impossible for courts to stay out

of the process. In the absence of a decision from this

Court setting out how to adjudicate claims of excessive

partisan gerrymandering as such, litigants driven by

partisan concerns have been channeling into other

doctrinal pigeonholes their attacks on plans that

disadvantage them. And it is abundantly clear that

they will continue to do so. The incentives to litigate—

given the gains to be had from obtaining a politically

favorable map—are simply too great.

This Court’s reluctance to articulate the contours

of a justiciable partisan gerrymandering claim has

distorted constraints on redistricting designed to

protect other interests and to solve other problems. By

that “[hlowever equal districts may be in population as a formal

matter,” if “unfairness” in how the votes of different groups are

“minimized or maximized” is “sufficiently demonstrable, the

guarantee of equal protection condemns it as a denial of

substantial equality.” Id. at 343 (Souter, J., dissenting). And

Justice Breyer concluded that “political gerrymandering” that

“entrenches a minority party in power violates basic democratic

norms” and “gerrymandering that leads to entrenchment

amounts to an abuse that violates the Constitution’s Equal

Protection Clause.” Id. at 361-62 (Breyer, J., dissenting).

6

recognizing the justiciability of partisan

gerrymandering claims, the Court can bring greater

coherence and integrity to the law governing

redistricting. Such a holding would neither increase

the amount of litigation nor unjustifiably infringe on

states’ proper role in redistricting. Even if the number

of cases does not change, a regime in which claims of

excessive partisanship are litigated directly will allow

courts to decide cases in a less arbitrary and more

efficient way.

I. The absence of a judicially enforced constraint

on partisan gerrymandering has not prevented,

and will not prevent, federal courts from facing

decades of redistricting litigation driven by

partisan concerns.

In some areas of law, litigation would largely dry

up if this Court were to .iold a particular claim

nonjusticiable. Redistricting is not one of them. Wholly

apart from their ability to challenge a particular

districting plan as unconstitutionally partisan,

political actors have a panoply of other available

claims, and “court action that is available tends to be

sought.” Vieth v. Jubelirer, 541 U.S. 267, 300 (2004)

(plurality opinion). Litigants have used these already

existing causes of action repeatedly in the face of this

Court’s reluctance to articulate a standard for directly

adjudicating claims of excessive partisanship. This

experience shows that any hope that holding partisan

gerrymandering claims nonjusticiable will eliminate

“years of essentially pointless litigation,” Br. for

Appellants 35 (quoting Vieth, 541 U.S. at 306), is a

pipe dream.

7

1. Federal law imposes a series of constraints on

redistricting that are widely available to litigants.

This includes litigants whose real disagreement with

a plan centers on the “substantial political

consequences” that a district plan “inevitably has and

is intended to have,” Gaffney v. Cummings, 412 U.S.

735, 753 (1973). Much of the time, and without regard

to whether they can challenge a plan directly for being

unconstitutionally partisan, there is no shortage of

“displeased voter[s]” who “can file a lawsuit in federal

court” that, if they win, will require redrawing a

substantial part of “the entire map,” Br. for Appellants

2.

First, actors upset with the partisan consequences

of a particular plan may be able to challenge the plan

as violating constitutional principles of one-person,

one-vote articulated in Wesberry v. Sanders, 376 U.S.

1, 17-18 (1964) (required for congressional districts by

Article I, section 2) and Reynolds v. Sims, 377 U.S.

533, 577 (1964) (required for state and local electoral

districts by the Equal Protection Clause). Any voter

who lives in an overpopulated district has standing to

bring such a suit.

For congressional districts, it may be quite easy

for a litigant to use one-person, one-vote to tie up a

state’s plan in litigation. This Court has held that,

with respect to congressional districts, the

Constitution requires that a state “justify population

differences between districts that could have been

avoided by ‘a good-faith effort to achieve absolute

equality.” Tennant v. Jefferson Cty. Comm’n, 567 U.S.

758, 759 (2012) (per curiam) (quoting Karcher v.

Daggett, 462 U.S. 725, 730 (1983) and Kirkpatrick v.

Preisler, 394 U.S. 526, 530-31 (1969)). Given modern

8

districting software, plaintiffs will find it easy to show

that virtually any deviation of more than a dozen or so

people can be avoided. See, e.g., Vieth v. Pennsylvania,

195 F. Supp. 2d 672, 675 (M.D. Pa. 2002) (three-judge

court) (although the challenged map had a deviation

of only 19 persons between the largest and smallest

districts, the challengers were able to draw a map

“which had a minimum possible deviation—districts

that differ by only one person”), appeal dismissed as

moot, 537 U.S. 801 (2002). If the deviation, however

small, is avoidable, then “the burden shifts to the State

to ‘show with some specificity’ that the population

differences ‘were necessary to achieve some legitimate

state objective.” Tennant, 567 U.S. at 760 (quoting

Karcher, 462 U.S. at 741, 740). At this justification

phase, reviewing courts have considerable leeway in

deciding whether a particular deviation was in fact

necessary or legitimate. See infra p.24.

With respect to state, county, and municipal

elections, plaintiffs face a somewhat higher burden

because jurisdictions have greater leeway in achieving

numerical equality. Usually, jurisdictions need not

justify their plan unless the plaintiffs show that the

population deviation between the largest and the

smallest district exceeds ten percent of the size of an

ideal district. See Evenwel v. Abbott, 136 S. Ct. 1120,

1124 (2016) (citing Brown v. Thomson, 462 U.S. 835,

842-43 (1983)). But faced with claims of excessive

partisanship, some courts have recently begun to

demand justifications for, and strike down as

malapportioned, plans whose deviations fell below ten

percent. See infra pp. 22-24.

No one actually can feel their vote is “debased”

when congressional districts deviate from the ideal by

9

19 people. But if that is the only hook those injured by

partisan gerrymandering can use to try to invalidate a

plan, they will use it. As a realistic matter, it is far

more likely—given the relatively small population

deviations in most contemporary redistricting plans—

that a concern other than sheer mathematical equality

in district populations drives the decision to file most

twenty-first century one-person, one-vote lawsuits.

Quite often, that concern involves the partisan

consequences of a challenged plan.

Second, it may be possible for groups or

individuals upset with the partisan consequences of a

particular plan to challenge the plan as an

unconstitutional racial gerrymander. Any individual

who “resides in a racially gerrymandered district” can

bring suit to challenge that district. United States v.

Hays, 515 U.S. 737, 745 (1995).

Plaintiffs in such cases must show “that race was

the predominant factor motivating the legislature’s

decision to place a significant number of voters within

or without a particular district.” Bethune-Hill v. Va.

State Bd. of Elections, 137 S. Ct. 788, 797 (2017)

(quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)).

If plaintiffs show that ‘racial considerations

predominated over others, the design of the district

must withstand strict scrutiny.” Cooper v. Harris, 137

S. Ct. 1455, 1464 (2017). The only justification this

Court has so far accepted as potentially satisfying this

standard is that taking race into account to such a

degree was necessary in order to comply with the

Voting Rights Act. See Bethune-Hill, 137 S. Ct. at 801.

Because “racial identification is highly correlated

with political affiliation” in some jurisdictions, Cooper

v. Harris, 137 U.S. at 1473, when plaintiffs in those

10

jurisdictions have no way to bring a straightforward

political gerrymandering claim, they face an incentive

to bring racial gerrymandering claims instead. This

demands they couch what are fundamentally partisan

political conflicts as racial ones.

Third, it may be possible for groups or individuals

upset with the partisan consequences of a particular

plan to challenge the plan by claiming that the plan

involves impermissible racial vote dilution. Any voter

who is a member of the protected group and who lives

in a part of the state where minority voting strength

has allegedly been diluted may bring a racial vote

dilution lawsuit.

Both the Equal Protection Clause and Section 2 of

the Voting Rights Act, 52 U.S.C. § 10301, prohibit

jurisdictions from drawing districts that give minority

citizens “less opportunity” than other citizens “to

participate in the political processes and to elect

legislators of their choice.” White v. Regester, 412 U.S.

755, 766 (1973). Because plaintiffs are ,equired to

show that the jurisdiction acted with a discriminatory

purpose to establish a violation of the Equal Protection

Clause, see Rogers v. Lodge, 458 U.S. 613, 616-18

(1982), plaintiffs asserting claims of racial vote

dilution have generally had their claims resolved

under Section 2, which does not require proof of a

discriminatory purpose. See Thornburg v. Gingles, 478

U.S. 30, 50 (1986). Plaintiffs suing under Section 2

need show only that the challenged plan has a racially

discriminatory “result(]” under the “totality of

circumstances.” 52 U.S.C. §10301(a), (b).

Given these various potential causes of action—

not to mention state-law constraints in many

jurisdictions—it is not surprising that most states find

11

themselves in some form of litigation or another over

their congressional or state legislative districts. See

Morgan Cullen & Michelle Davis, 5 Trends Shaping

Redistricting, State Legislatures Mag. (Oct./Nov.

2012), http://tinyurl.com/16-1161-tsacA (reporting

that “[s]ince 2010, 193 court cases have been filed, and

68 are still active”; that this “is far more than the 149

cases (40 states) filed in the 2000s and the 150 cases

(41 states) filed in the 1990s”; and that “[clourts have

redrawn plans in Colorado, Connecticut, Kansas,

Minnesota, Mississippi, New Mexico, Nevada, New

York, Texas and Wisconsin”); Justin Levitt, Litigation

in the 2010 Cycle, All About Redistricting,

http://redistricting.lls.edu/cases.php (last visited Aug.

31, 2017) (providing an interactive map and links to

the documents in post-2010 cases).

2 Recent history is replete with examples of

politiccl disputes being litigated not only as claims of

unconstitutional partisan gerrymandering but also

under one of these other rubrics. Indeed, the case now

before this Court is typical of how, in many

jurisdictions, “decennial litigation [has become] just as

much a feature of the political scene as [is] decennial

redistricting.” Baldus v. Members of Wis. Gov’t

Accountability Bd., 849 F. Supp. 2d 840, 843 (E.D. Wis.

2012) (three-judge court).*®

° The case now before the Court is the second major

challenge to the post-2010 Wisconsin state legislative

apportionment. Baldus was the first. One of the plaintiff groups

in Baldus originally brought a partisan gerrymandering claim,

but abandoned that claim at trial. See Baldus, 849 F. Supp. 2d at

848. Another group, composed of legislator-intervenors, pursued

the claim, but the court rejected it because the intervenors had

12

a. Georgia’s post-2000_ state legislative

redistricting provides an example of how one-person,

one-vote claims get deployed to address partisan

gerrymanders.

In the Georgia Legislature, Democrats controlled

the redistricting process. “The creators of the state

plans did not consider such traditional redistricting

criteria as district compactness, contiguity, protecting

communities of interest, and keeping counties intact.

Rather, they had two expressly enumerated objectives:

the protection of rural Georgia and inner-city Atlanta

against a relative decline in their populations

compared with that of the rest of the state and the

protection of Democratic incumbents.” Larios v. Cox,

300 F. Supp. 2d 1320, 1325 (N.D. Ga. 2004) (three-

judge court), summarily aff'd, 542 U.S. 947 (2004). To

achieve these goals, the plan drawers deliberately

underpopulated majority-Democratic districts while

packing additional residents into majority-Republican

ones (stopping just short of the 10% maximum

deviation line). They also drew districts pairing a

disproportionate number of Republican incumbents

against one another. Id. at 1329-30.

Plaintiffs challenged the plan as an

unconstitutional political and racial gerrymander. See

Larios, 300 F. Supp.2d at 1357-58. The district court

rejected the partisan gerrymandering claim, id.; see

also id. at 1351 (stating that “[tloday, we have no

failed to offer a workabie standard. See id. at 860. Ultimately,

that court held that the configuration of state assembly districts

in Milwaukee violated Section 2 of the Voting Rights Act because

it diluted the voting strength of Latino citizens, see id. at 854-58,

but rejected all of the plaintiffs’ other clairas, see id. at 859-60.

13

occasion to consider the limits of partisan

gerrymandering”), and it denied the _ racial

gerrymandering challenge as moot, “as the relief

sought by the plaintiffs is granted for other reasons,”

id. at 1358. Instead, the court ruled for the Republican

plaintiffs on their one-person, one-vote claim. Id. at

1357. It held that even though the State had stayed

below a total population deviation of 10%, its plan

violated principles of one-person, one-vote because the

population deviations were “bound up inextricably,”

id. at 1352, with impermissible efforts “to allow rural

and inner-city Atlanta regions of the state to hold on

to their legislative influence (at the expense of

suburban Atlanta)” despite population shifts and “to

protect incumbents in a wholly inconsistent and

discriminatory way,” id. at 1342. The court expressly

reserved the question “whether or when partisan

advantage alone may justify deviations in population.”

Id. at 1352.

This Court affirmed summarily. Cox v. Larios, 542

U.S. 947 (2004). Justice Stevens, joined by Justice

Breyer, concurred to note that the plan was evidence

that “an impermissible partisan gerrymander is

visible to the judicial eye and subject to judicially

manageable standards.” Id. at 950 (Stevens, J.,

concurring).‘

* This decade, Georgia is again facing litigation over its

redistricting. Earlier this year, the Georgia Conference of the

NAACP and five individual voters who identify themselves as

both African Americans and registered Democrats brought suit

alleging that two of Georgia’s state house districts are both

partisan gerrymanders; they also allege that the plan violates the

14

b. The long-running saga of North Carolina’s

congressional map—only last Term one of its districts

made “its fifth(!) appearance before this Court,”

Cooper v. Harris, 137 S. Ct. at 1472—shows how

partisan disputes get litigated within the Shaw

framework.

After the 1990 census, Democrats drew

congressional districts with “very contorted” lines to

protect their party’s incumbents despite a declining

share of the vote. Pope v. Blue, 809 F. Supp. 392, 394

(W.D.N.C. 1992) (three-judge court), summarily affd,

506 U.S. 801 (1992). Republicans initially brought a

straightforward challenge to the plan as an

impermissible partisan gerrymander. Despite

recognizing that the plaintiffs had sufficiently alleged

“anti-Republican bias” in the plan, id. at 397, the

district court felt that its hands were tied by this

Court’s precedents. Thus, it dismissed the complaint

for failure to state a claim, id. at 399, in light of this

Court’s requirement, in Davis v. Bandemer, 478 U.S.

109 (1986), that plaintiffs show that they had

“essentially been shut out of the political process,” ic’.

at 139. Republicans could not make such a showing,

the district court held, because the plan contained

some blican districts. Pope v. Blue, 809 F. Supp.

at 397.

Shortly after this Court affirmed the decision

shutting the doors to a partisan gerrymandering

Equal Protection Clause’s prohibition on intentional racial vote

dilution and Section 2’s results test. See Complaint for Injunctive

and Declaratory Relief 77 1-4, Ga. State Conference of the

NAACP vy. Georgia, No. 1:17-cv-01427-TCB (N.D. Ga. Apr. 24,

2017), 2017 WL 1457270.

15

claim, it opened the doors to a round of litigation

challenging the plan as an impermissible racial

gerrymander. See Shaw v. Reno, 509 U.S. 630 (1993);

Shaw v. Hunt, 517 U.S. 899 (1996). Although this

Court held that two of the districts violated the

prohibition on excessive use of race, it acknowledged

that “partisan politicking was actively at work in the

districting process.” Shaw v. Hunt, 517 U.S. at 907.

And not only in the districting process, but in the

litigation itself: The plaintiffs from the partisan

gerrymandering suit reappeared in the Shaw

litigation, this time claiming the constitutional

infirmity in the plan involved race, not politics. It was

“plain that these intervenors [were] using their

allegations of impermissibly race-based districting to

achieve the same substantive result that their

previous, less emotionally charged partisan gerryman-

dering challenge failed to secure.” Id. at 920 (Stevens,

J., dissenting).

After this Court’s decision in Shaw v. Hunt, the

State redrew its districts. This prompted yet a third

round of litigation, also involving allegations that the

State’s plan was an _ unconstitutional racial

gerrymander. In Hunt v. Cromartie, 526 U.S. 541

(1999), the Court reversed the district court’s grant of

summary judgment for the plaintiffs. In light of the

“high correlation between race and party preference,”

id. at 552, and the State’s claim that the challenged

plan had been drawn to protect incumbents and

maintain a partisan balance, the Court held that a

trial was required to determine whether “race was the

State’s predominant motive” in crafting the plan, id. at

554. On appeal after the trial, the Court held that the

plaintiffs had failed to show that “race, rather than

16

politics, predominantly accountled]” for the

configuration of the plan. Easley v. Cromartie, 532

U.S. 234, 257 (2001). Put differently, the plan this

Court upheld “was the result of a_ political

gerrymander—an effort to engineer, mostly ‘without

regard to race,’ a safe Democratic seat.” Cooper v.

Harris, 137 S. Ct. at 1465 (quoting Easley, 532 U.S. at

245).

Following 2010, Republicans controlled North

Carolina congressional redistricting. But once again,

the State’s plan was the subject of a Shaw challenge.

The State countered by defending its plan as a

“strictiy’ political gerrymander.” Cooper v. Harris, 137

S. Ct. at 1473. This Court recognized that “[g]etting to

the bottom of a dispute like this one poses special

challenges for a trial court” especially when “racial

identification is highly correlated with political

affiliation.” Id. (quoting Easley, 532 U.S. at 243)). In

the case before it, the Court affirmed the district

court’s conclusion that race impermissibly served as

the predominant motive for the challenged districts’

configurations.

But litigation over North Carolina’s congressional

districts is hardly over. When the state legislature

redrew the map, it went out of its way to characterize

the new map as a partisan gerrymander, purportedly

crafted to entrench the Republican “partisan

advantage” first achieved “under the map held

unconstitutional in [Cooper v.] Harris.” Common

Cause v. Rucho, 2017 WL 876307, at *2 (M.D.N.C.

2017) (three-judge court) (denying the defendants’

motion to dismiss). As with the plan struck down in

the Cooper v. Harris litigation, the new plan packs

Democratic voters (many of whom are African

17

American) into the First and [Twelfth Congressional

districts, leaving the remaining districts

disproportionately Republican.

c. Texas congressional districting provides an

example of how litigation over fiercely partisan

gerrymanders occurs in the context of Section 2 racial

vote dilution cases.

After the 1990 census, Democrats controlled the

redistricting process in Texas. “[D]raw[ing] district

lines with artful precision, the legislature enacted a

plan later described as the ‘shrewdest gerrymander of

the 1990s.” LULAC v. Perry, 549 U.S. 399, 410-11

(2006) (opinion of Kennedy, J.) (quoting M. Barone, R.

Cohen, & C. Cook, Almanac of American Politics 2002,

at 1448 (2001)). The plan allowed the Democrats to

control a significant majority of Texas’s seats even

though Republican candidates garnered 59% of the

vote statewide. Nevertheless, a claim that the plan

represented an unconstitutional partisan gerry-

mander failed. See Terrazas v. Slagle, 821 F. Supp.

1162, 1175 (W.D. Tex. 1993) (three-judge court).

Because of divided control of the Texas Legis-

lature, the State was unable to draw a new

congressional map immediately after the 2000 census.

But in 2003, Republicans gained control of both

houses. They then drew a new map, “the single-

minded purpose” of which “was to gain partisan

advantage.” Session v. Perry, 298 F. Supp. 2d 451, 470

(E.D. Tex. 2004) (three-judge court), vacated and

remanded in light of Vieth v. Jubelirer, 543 U.S. 941

(2004).

The ensuing lawsuit presented claims of both an

unconstitutional partisan gerrymander and violations

18

of Section 2 of the Voting Rights Act. This Court

rejected the various theories as to why the plan

involved constitutionally excessive partisanship, but

held that the State’s configuration of House District 23

violated Section 2 of the Voting Rights Act. An

“increasingly powerful Latino population” was

“threaten[ing] to oust” an incumbent Republican

congressman, Henry Bonilla. LULAC, 548 U.S. at 423

(majority opinion). Republicans reconfigured his

district (and necessarily several adjacent ones) to

reduce the Latino share of the citizen voting-age

population and thereby serve the “dual goal of

increasing Republican seats in general and protecting

Bonilla’s incumbency in particular.” Id. at 425.

(Eliminating Latino voters’ ability to elect the

representative of their choice in the district drawn to

protect Bonilla required the State to draw “an

offsetting” majority-minority district elsewhere, id. at

429, in order to obtain preclearance of its plan; the

district it drew—House District 25—“combine[d] two

farflung” heavily Latino areas, id. at 433. This Court

expressed its disapproval of that new district.)

This Court explained that the new district “took

away the Latinos’ opportunity [to elect the

representative of their choice] because Latinos were

about to exercise it. This bears the mark of intentional

[racial] discrimination that could give rise to an equal

protection violation.” LULAC, 548 U.S. at 440. Thus,

even if “the State’s action was taken primarily for

political, not racial, reasons,” it was impermissible. Id.

Because the Court struck down House District 23 on

Section 2 grounds, it was unnecessary to address the

plaintiffs’ claims “that the use of race and politics in

drawing that district violate[d] the First Amendment

19

and equal protection.” Id. at 442. And redrawing that

district would, of necessity, require redrawing other

districts as well. Accordingly, the Court declined to

rule on an equal protection violation with respect to

other districts. Id.

Amici could provide numerous other examples of

how litigation over state legislative and congressional

redistricting will occur regardless whether this Court

articulates a judicially enforceable limit on the degree

of permissible partisanship. These examples would

simply reinforce the fact that litigation is often

brought by partisan actors and, whether or not that is

the case, often requires analysis of allegedly partisan

purposes and effects of the challenged plan in the

course of adjudicating claims raising other

constitutional or statutory violations.

The Wisconsin Legislature claims that affirming

the judgment below will allow “a virtually limitless

universe of plaintiffs” to bring suit, cabin States’

control over their redistricting processes, and

undercut legislative privilege. Brief for Amici Curiae

Wisconsin State Senate and Wisconsin State

Assembly in Support of Appellants 10, 11-14

(“Wisconsin Legislative Amicus Br.”). But those

problems existed long before the district court here

struck down Wisconsin’s plan. No matter what this

Court decides, courts can continue to expect

redistricting cases “(like a periodic comet, once every

ten years.” Radogno v. Ill. State Bd. of Elections, 2011

WL 5025251, at *1 (N.D. Ill. 2011) (three-judge court).

20

II. The absence of a straightforward mechanism

for adjudicating claims of unconstitutional

partisan gerrymandering has led to troubling

distortions of other constraints on redistricting.

Channeling litigants’ and courts’ concerns about

excessive partisanship in redistricting into other

doctrinal pigeonholes is not costless. To the contrary,

it has produced a series of pernicious consequences.

A. The absence of a straightforward partisan

gerrymandering claim has distorted one-

person, one-vote.

1. The doctrine governing one-person, one-vote is

a bad fit for addressing excessive partisanship.

As the Court explained in its foundational

decision in Reynolds v. Sims, 377 U.S. 533 (1964), the

requirement of equipopulous districting is meant to

protect a right that is “individual and personal” to each

voter. Id. at 561; see Lucas v. Forty-Fourth Gen.

Assembly, 377 U.S. 713, 736 (1964) (describing the

right at issue as “[aJn individual’s constitutionally

protected right to cast an equally weighted vote”).

Almost immediately, this Court recognized that

one-person, one-vote did not itself ensure the fair

allocation of political power among political groups. In

Fortson v. Dorsey, 379 U.S. 433 (19€5), the Court

confronted a state legislative apportionment where

there was “substantial equality of population” across

the various districts. Id. at 436. It recognized that

nonetheless, a plan might violate the Constitution if it

“operate([s] to minimize or cancel out the voting

strength of racial or political elements of the voting

population.” Id. at 439; see also Gaffney v. Cummings,

412 U.S. 735, 751 (1973) (“[Llegislative districts may

21

be equal or substantially equal in population and still

be vulnerable under the Fourteenth Amendment.”).

The individual analysis at the heart of one-person,

one-vote is thus distinctive from the outcome-

dependent claim that a group of voters are unable to

elect their preferred candidates, because the focus of

the latter type of case is “not on population-based

apportionment but on the quality of representation.”

Whitcomb v. Chavis, 403 U.S. 124, 142 (1971); see

Nevett v. Sides, 571 F.2d 209, 215-16 (5th Cir. 1978)

(distinguishing between the two types of claims), cert.

denied, 446 U.S. 951 (1980).

Given this analytic distinction, it is no surprise

that the remedy available in a one-person, one-vote

case is a hit-or-miss way of addressing the qualitative

harm of partisan gerrymandering. A plaintiff who

wins a one-person, one-vote claim is entitled only to a

new map with more equipopulous districts. Reynolds,

377 U.S. at 586. But while deviations from population

equality once offered a useful tool for obtaining

partisan advantage, “rapid advances in computer

technology” often make it possible for line drawers to

create equipopulous districts while also furthering

other “secondary goals,” such as partisan advantage.

Karcher v. Daggett, 462 U.S. 725, 733 (1983). Thus,

proving a violation of one-person, one-vote may do

nothing to alleviate the political consequences that led

the plaintiff to sue in the first place.

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

point. Initially, Democratic voters brought and won a

one-person, one-vote challenge based on a maximum

population deviation of nineteen people. Vieth v.

Pennsylvania, 195 F. Supp. 2d 672, 675, 678 (M.D. Pa.

2002) (three-judge court), appeal dismissed as moot,

22

537 U.S. 801 (2002). After the legislature drew a

remedial plan, voters immediately filed another

challenge on the grounds of both malapportionment

and excessive partisan gerrymandering. This time, the

district court upheld the plan, despite the fact that,

“like its predecessor,” the plan drawers had

“jettison[ed] every other neutral non-discriminatory

redistricting criteria that the Supreme Court hald]

endorsed.” Vieth v. Pennsylvania, 241 F. Supp. 2d 478,

483 n.3 (M.D. Pa. 2003) (three-judge court), aff'd, 541

U.S. 267 (2004). The court found it irrelevant that the

plan was allegedly “rigged to guarantee that thirteen

of Pennsylvania’s nineteen congressional represen-

tatives will be Republicans” despite the two major

parties enjoying “nearly equal support in the

Commonwealth,” Vieth v. Pennsylvania, 188 F. Supp.

2d 532, 546, 536 (M.D. Pa. 2002) (three-judge court);

see Vieth v. Pennsylvania, 241 F. Supp. 2d at 485

(reaffirming this analysis). The reason? This time, the

population deviations were minimized.

2. Despite the conceptual mismatch, lower courts

are increasingly using one-person, one-vote as a

mechanism for striking down plans essentially

because the courts conclude that excessive

partisanship is at work.

Until recently, the “general matter” seemed to be

that a plan with “a maximum population deviation

under 10%” involved deviations “insufficient to make

out a prima facie case.” Brown v. Thomson, 462 U.S.

835, 842 (1983).

But faced with “the sense that legislative restraint

was abandoned,” Vieth, 541 U.S. at 316 (Kennedy, J.,

concurring in the judgment), federal courts seem

increasingly willing to strike down plans with these

23

previously safe population deviations. Amici have

already described Larios v. Cox, 300 F. Supp. 2d 1320

(N.D. Ga. 2004) (three-judge court), summarily affd,

542 U.S. 947 (2004), where the district court struck

down such a plan because of its “systematic favoring

of Democratic incumbents,” id. at 1353. See supra pp.

12-13; see also Hulme v. Madison County, 188 F.

Supp. 2d 1041, 1061 (S.D. Il. 2001) (invalidating

highly partisan plan as “unquestionably tainted with

arbitrariness and discrimination”).

More recently, courts have taken as an

authorization to strike down plans for excessive

partisanship this Court’s suggestion that plaintiffs

can attack plans for violating one-person, one-vote if

they show that “it is more probable than not that a

deviation of less than 10% reflects the predominance

of illegitimate reapportionment factors,” Harris v.

Ariz. Indep. Redistricting Comm’n, 136 8S. Ct. 1301,

1307 (2016). Thus, in Raleigh Wake Citizens Ass’n v.

Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir.

2016), the court of appeals struck down local! electoral

districts on the grounds that it was “more probable

than not that the population deviations at issue here

reflect the predominance of a(n] _ illegitimate

reapportionment factor—namely an ‘intentional effort’

to create ‘a significant . . . partisan advantage.” Id. at

345 (citation omitted) (quoting Larios, 542 U.S. at 947-

49 (Stevens, J., concurring)). And in Perez v. Abbott,

SA-11-CV-360, 2017 WL 1450121 (W.D. Tex. Apr. 20,

2017) (three-judge court), a court struck down several

state legislative districts in a plan with less than 10%

total deviation. Two districts were unconstitutional

because the motives for the otherwise-minor

population deviations “were exceedingly political and

24

racial.” Id. at *74. Similarly, another district was

unconstitutional because the population deviation w

“not the result of any legitimate redistricting

considerations, and instead [was] driven only by the

partisan objective of re-electing” a Republican

incumbent. Id. at *69.

3. The practical problems with this emerging use

of one-person, one-vote are several.

First, without guidance from this Court on when

partisan considerations are illegitimate—the core

question in this case—lower federal courts are likely

to take divergent positions when they get to the

justification phase of malapportionment suits. Judges

will disagree on the degree of partisanship sufficient

to render population deviations illegitimate. And

because lower court decisions diverge, many courts

faced with such a claim expend significant time and

attention on trying to figure out the law. See, e.z.,

Perez, 2017 WL 1450121, at *60-*74.

In Anne Arundel County Republican Central

Committee v. State Administrative Board of Election

Laws, 781 F. Supp. 394 (D. Md. 1991) (three-judge

court), summarily affd, 504 U.S. 938 (1992), the

district court split 2-1 over the constitutionality of a

congressional map with a maximum deviation of ten

people (from ideal districts of 597,683.5 people each).

Id. at 395. The majority required the State to justify

the deviation, but upheld the plan because it believed

the State’s interests were sufficiently legitimate “to

warrant the very small numerical variance among the

congressional districts seen here.” Id. at 396-97. In

dissent, Judge Niemeyer took issue with both prongs

of the majority’s analysis. He doubted that any “policy

or consideration” would be “served by shifting three or

25

four persons from one district to another or needs to be

advanced for failing to shift them.” Id. at 402. That

being said, he argued that the plan was

unconstitutional because it could not be justified by

legitimate, neutral districting principles. See id. at

408-10.

Moreover, absent guidance from this Court,

jurisdictions cannot intelligently assess’ their

litigation risk with respect to plans whose deviations

realistically have no effect on the mathematical

equality of any individual voter’s ballot. This deprives

them of the “play in [the] joints,” Reynolds, 377 U.S. at

577 n.57 (citation omitted), that led this Court to reject

a strict population equality standard for state and

local electoral districts. Jurisdictions may be reluctant

to deviate even minimally for wholly legitimate

reasons given the risk of litigation and the cost of

defending themselves. Redistricting law would work

better if this Court once again gave those who draw

state and local districts some flexibility with respect to

district populations. By articulating a standard for

judicial review of partisan gerrymandering claims, the

Court could relieve the pressure on courts to engage

one-person, one-vote “issues” as a tool for addressing

the real constitutional infirmity.

In addition, when the real impetus for a one-

person, one-vote lawsuit is partisan consequences,

there may be gamesmanship with respect to the

timing of litigation. Absent some change in the

identity or interests of the people who draw the new

lines, plaintiffs who win a malapportionment suit will

likely find themselves confronted with an equally

partisan new map. Litigation will therefore get

brought, and the pace will be set, by the parties’ sense

26

of whether, if the map is struck down, control over

redrawing the lines will shift to actors who share the

plaintiffs’ political interests or will deadlock, leaving

the task of setting district boundaries to the court.

Because “political gerrymandering, a purely partisan

exercise, is inappropriate for a federal court drawing a

congressional redistricting map,” Balderas v. Texas,

No. 6:01CV158, 2001 WL 36403750, at *4 (E.D. Tex.

Nov. 14, 2001) (three-judge court), summarily affd,

536 U.S. 919 (2002), the lines in the new plan will

likely be more politically neutral. See Connor v. Finch,

431 U.S. 407, 415 (1977). The upshot of these practical

considerations is that lawsuits may be brought well

into the decade, by which time the ostensible

population deviations no longer reflect any reality on

the ground, see Karcher v. Daggett, 462 U.S. 725, 732

(1983) (pointing to “the well-known restlessness of the

American people [that] means that population counts

for particular localities are outdated long before they

are completed”).

Finally, when judicial decisions strike down plans

based on minuscule numerical differences in district

populations, courts risk the public perception that

they are being disingenuous. See, e.g., Terry Madonna

& Michael Young, Opinion, Is Court Changing Rules

on Redrawing Political Maps?, Morning Call

(Allentown, Pa.) (Apr. 26, 2002), http://tinyurl.com/16-

1161-tsacB (suggesting that “[a}rcane statistics” about

population deviations were not the district court’s real

concern in the first round of Vieth, but that the court

was motivated by “the partisan nature of the

Republican plan”).

27

B. The absence of a straightforward partisan

gerrymandering claim has _ distorted

doctrines designed to address racial

discrimination in redistricting.

The absence of a partisan gerrymandering

standard has had the “perverse consequence[]” of

incentivizing litigants in multiracial or multiethnic

jurisdictions to “squeeze all claims of improper

manipulation of redistricting into the suffocating

category of race.” Samuel Issacharoff,

Gerrymandering and Political Cartels, 116 Harv. L.

Rev. 593, 630-31 (2002). This dynamic creates a

harmful and unnecessary fixation on race and fosters

cynicism about the Voting Rights Act, undermining

the national commitment to ensuring that all citizens,

regardless of race, are able to elect candidates of their

choice. And the problems that come from doctrinal

entanglement has only grown more complex over time.

1. Twenty years ago, Justice Stevens presciently

warned that Shaw claims might become “useful less as

a tool for protecting against racial discrimination than

as a means by which state residents may second-guess

legislative districting in federal court for partisan

ends.” Shawv. Hunt, 517 U.S. 899, 920 (1996)

(Stevens, J., dissenting).

Like reapportionment itself, litigation over

reapportionment “is one area in which appearances do

matter.” Shaw v. Reno, 509 U.S. 630, 647 (1993).

Packaging political disputes as impermissible racial

gerrymanders “reinforces the perception,” id., that

race lies at the heart of American politics and

threatens to “exacerbate” the racial polarization that

antidiscrimination law is designed to combat, id. at

648. Such packaging creates a “corrosive discourse” in

28

which “race serves not as an element of our diverse

heritage but instead as a bargaining chip in the

political process.” Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 797 (2007)

(Kennedy, J., concurring in part and concurring in the

judgment).

2. Not only does the absence of a clear path for

attacking excessive partisanship create an incentive

for plaintiffs to cry intentional racial discrimination

when their real objection is political, but it gives

jurisdictions an incentive to defend themselves by

asserting that instead of committing one violation of

constitutional principles by excessively relying on

racial considerations, they actually committed

another: they sought to “minimize or cancel out the

voting strength” of “political elements of the voting

population.” Fortson v. Dorsey, 379 U.S. 433, 439

(1965). This incentive lay at the heart of North

Carolina’s defense in Cooper v. Harris, 137 8. Ct. 1455,

1476-77 (2017). The availability of an “it was really

politics’ defense,” id. at 1481, encourages a sort of

litigation shell game that reinforces public suspicion

that race and politics are interchangeable. For

example, faced with challenges to its post-1990

congressional districts, Texas legislators defended

against a partisan gerrymandering claim by asserting

that they were motivated by race, and against a racial

gerrymandering claim by asserting that they were

motivated by politics. Bush v. Vera, 517 U.S. 952, 970

(1996) (plurality opinion).

Even worse, if courts uphold redistricting plans

based on the “blame it on politics” defense and do not

articulate any limits on partisan considerations, they

become complicit in potential constitutional violations.

29

Far from simply declaring challenges to partisan

gerrymandering nonjusticiable, courts that accept the

defense are actually giving judicial imprimatur to

partisan gerrymanders.

By contrast, adopting a judicially enforceable

limit on the permissible degree of partisanship would

reinforce democratic principles and dissuade states

from justifying redistricting plans by claiming that

they were deliberately trying to cancel out citizens’

ability to elect public officials responsive to their

needs. Moreover, adopting such a limit would

authorize lower courts to _ resolve partisan

gerrymandering cases without unnecessarily focusing

on race.

2. Shoehorning partisan disputes into Section 2

claims creates cynicism about the Voting Rights Act,

threatening the national commitment to providing all

citizens with an equal opportunity to elect

representatives of their choice.

The central goal of the Act “is to prevent

discrimination in the exercise of the electoral

franchise and to foster our transformation to a society

that is no longer fixated on race.” Georgia v. Ashcroft,

539 U.S. 461, 490 (2003). But until partisan disputes

can be litigated openly, “the party out of power [will

attempt] to stretch the protective cover of the Voting

Rights Act, urging dilution of critical standards that

may, if accepted, aid their party in the short-run but

work to the detriment of persons now protected by the

Act in the long-run.” Session v. Perry, 298 F. Supp. 2d

451, 474 (E.D. Tex. 2004) (three-judge court), vacated

and remanded in light of Vieth v. Jubelirer, 543 U.S.

941 (2004). When courts perceive that a proportion of

Section 2 claims are nothing more than disputes

30

between the major political parties, doctrines may

emerge that make it harder for minority communities

whose voting strength has actually been diluted to

enforce the statute.

This is a serious problem given that “voting

discrimination still exists; no one doubts that.” Shelby

County v. Holder, 133 S. Ct. 2612, 2619 (2013). Even

today, Section 2 is vital to addressing electoral

districts that deny minority voters equal opportunities

to elect candidates of their choice. See, e.g., Patino v.

City of Pasadena, 230 F. Supp. 3d 667, 674 (S.D. Tex.

2017) (finding Section 2 violation involving intentional

discrimination against Latino voters), stay denied

pending appeal, 677 F. App’x 950, 953 (5th Cir. 2017);

Mo. State Conference of the NAACP v. Ferguson-

Florissant Sch. Dist., 201 F. Supp. 3d 1006, 1082 (E.D.

Mo. 2016), appeal docketed, No. 16-4511 (8th Cir. Dec.

21, 2016). By enabling courts to address partisan

gerrymandering head on, this Court can preserve

Section 2 for cases where minority voters are denied

the ability other citizens have to elect representatives

of their choice. Those cases may overlap cases in which

unconstitutional partisanship played a role, but they

are not identical.®

® This Court generally encourages avoiding constitutional

questions—such as unconstitutional partisanship—when a case

can be resolved on statutory grounds. See Ashwander v. Tenn.

Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

But questions of race are sometimes so fraught that there may be

situations in which it is appropriate to resolve the constitutional

claim that a plan involves a blatant partisan gerrymander

without first addressing the Section 2 claim. Establishing a

standard for excessive partisanship would provide a neutral

alternative to unnecessarily fixating on race.

31

Amici are not under the illusion that recognizing

an express cause of action for unconstitutional

partisan gerrymandering will necessarily stop

litigants whose primary motivation is to change the

partisan complexion of a plan from continuing to

include other causes of action in their complaints. But

this Court can provide courts with a tool for avoiding

the problems that come from resolving cases on those

grounds when the constitutional infirmity is best

characterized as excessive partisanship.

Ill. Recognizing a judicially enforceable claim

against partisan gerrymandering will not

unjustifiably constrain states’ redistricting

choices.

Assertions that permitting express challenges to

partisan gerrymanders would “leav(e] little (if any)

room” for jurisdictions to accommodate legitimate

state interests, Wisconsin Legislative Amicus Br. 16,

are overblown.

1. Enforcing a constitutional limit on the degree of

partisan advantage the party controlling redistricting

can seize would not place an unduly burdensome

constraint on states’ redistricting options.

Appellees have not asked this Court to forbid all

consideration of political consequences in drawing a

plan. See Br. for Appellees 26 (only “both parties’ most

egregious gerrymanders” would violate the effects

prong of the test they propose). An affirmance by this

Court, combined with guidance about how to measure

when the partisan consequences of a plan exceed

tolerable limits, can provide a roadmap for plan

drawers to craft defensible plans. Jurisdictions

already consider the data and run predictions on

32

partisan effects. All they would need to do differently

is use that information to stay within constitutional

bounds rather than to maximize partisan advantage.

Moreover, requiring some modicum of political

fairness does not require line drawers to walk the kind

of tightrope they face in complying with other sorts of

constraints on districting. Consider, for example, the

role of race in the apportionment process. Section 2 of

the Voting Rights Act often requires taking race into

account in order to ensure that district configurations

do not deny minority voters an equal opportunity to

elect representatives of their choice. At the same time,

this Court’s Shaw jurisprudence forbids taking it into

account too much. Jurisdictions that guess wrong

about what the Art requires may produce a plan that

gets struck down “ecause race has played too great a

role, see, e.g., Cooper v. Harris, 137 S. Ct. 1455 (2017),

or because they have failed to draw majority-minority

districts where such districts are required, see, e.z.,

LULAC vy. Perry, 548 U.S. 399 (2006).

No such tension exists in the case of partisanship.

“There are no comparable affirmative legal obligations

that require states to take partisanship into account.”

Richard H. Pildes, The Supreme Court, 2003 Term—

Foreword: The Constitutionalization of Democratic

Politics, 118 Harv. L. Rev. 28, 67 (2004). The fact that

states with independent redistricting commissions

often expressly forbid partisan considerations proves

the point. To the extent that this Court restricts

legislatures’ options in announcing a justiciable limit

on partisan considerations, it simply reins in “a system

in which the representatives choose their constituents,

rather than vice-versa.” Vieth v. Jubelirer, 541 U.S.

267, 332 (2004) (Stevens, J., dissenting) (citation

33

omitted). That some jurisdictions may draw plans that

forgo a permissible amount of partisanship is a small

price to pay for restoring coherence to redistricting

doctrine and preventing egregious gerrymandering.

2. Placing some judicially enforceable restriction

on the degree of permissible partisanship in drawing

electoral district boundaries does not usurp states’

proper authority over redistricting.

The Legislative Amicus Brief argues that

imposing a judicially enforceable limit on partisan

gerrymandering runs afoul of this Court’s concern that

redistricting not be “recurringly removed from

legislative hands and performed by federal courts.”

Wisconsin Legislative Amicus Br. 4 (quoting Gaffney

v. Cummings, 412 U.S. 735, 749 (1973)). But that

quotation has been ripped out of context. It appears in

a paragraph discussing the Gaffney plaintiffs’ one-

person, one-vote claims. This Court was doing nothing

more than expressing an aversion to judicial

“displacement of otherwise appropriate state

decisionmaking in the name of essentially minor

deviations from perfect census-population equality

that no one, with confidence, can say will deprive any

person of fair and effective representation in his state

legislature.” Gaffney, 412 U.S. at 749.

This case involves a very different sort of claim.

As appellees explain, Wisconsin’s plan deprives the

roughly half the State’s electorate that supports

Democratic candidates of its right to fair and effective

representation in the state legislature. See Appellees’

Br. 14-17. And the reason this Court recognizes that

nakedly partisan line drawing is “incompatible with

democratic principles,” Ariz. State Legislature v. Ariz.

Indep. Redistricting Comm'n, 135 8. Ct. 2652, 2658

34

(2015) (alterations omitted) (quoting Vieth, 541 U.S.

at 292 (2004) (plurality opinion)), is precisely because

it does threaten these representational injuries.

While legislatures, in most states, clearly have the

“primary role” in_ redistricting, this Court’s

“precedents recognize an important role for the courts

when a districting plan violates the Constitution.”

LULAC, 548 U.S. at 415 (2006) (opinion of Kennedy,

J.). It should make clear that this role extends to

situations where a_ districting plan _ violates

constitutional constraints on excessive partisanship.

CONCLUSION

The judgment of the district court should be

affirmed.

Respectfully submitted,

Pamela S. Karlan

Counsel of Record

Jeffrey L. Fisher

David T. Goldberg

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

karlan@stanford.edu

September 5, 2017