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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0740%3A41. Public record. Not legal advice.