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

erare IN THE AUG - 4 2017

No. 16-1161

Supreme Court of the United

BEVERLY R. GILL, et al,

Appellants,

v.

WILLIAM WHITFORD, et ai.,

Appellees.

$$

On APPRAL FROM THE Unirep Srates Disrricr Court

FOR THE WESTERN District or WISCONSIN

BRIEF OF AMICI CURIAE THE MAJORITY

LEADER AND TEMPORARY PRESIDENT OF THE

NEW YORK STATE SENATE AND MEMBERS OF

THE MAJORITY COALITION IN SUPPORT

OF THE APPELLANTS

New York, New York 10007

(212) 285-2290

dlewis@lewisandfiore.com

Counsel for Amici Curiae

COUNSEL PRESS Line ef Ong

OF THE GLERK

ME COURT. U.S _

i

TABLE OF CONTENTS

Page

ne else eb ueeesouric i

TABLE OF CITED AUTHORITIES.............. iii

STATEMENT OF THE INTEREST OF

ae hing Saued eae 1

SUMMARY OF THE ARGUMENT................ 3

ea aaa seal a ate 5

SR REG ee eT ee tee mat ies ED Nace an Rae 5

I. The Efficiency Gap Is Of No Utility

In Measurement Of Partisanship In

Any Authentic Political System Which

Functions In Coalition As In The New

Gis 65 6 od 0.cn6d sees snetsenes 9

A. The Use Of A Gross Political Vote

As A Measurement As To Single

Member Winner-Take-Al! Elections Is

A Dangerous And False Measurement

In Objective Reality .................005. 9

1

Table of Contents

C. Minor Party Votes Which Are

Decisive In Close Elections In

The New York State Senate Are

Excluded Frorn The Wisconsin Social

i f: > itd eaiweddeheee 6 17

Il. Redistricting Of State Legislature Will

End Up Being Endlessly Micro Managed

By The Federal Courts Based Upon A

Claim Of Political Partisanship Given That

It Undermines Traditional Redistricting

PS dnéicteadtvseweaesste0eneus sus 19

EEE Suc cccckedsesvarcocceveadesuséens 23

1040

TABLE OF CITED AUTHORITIES

Page

CASES

Ala. Leg. Black Caucus v. Alabama,

I os nacesdigdcesndesienceeen 20

Baker v. Carr,

Ns ok co neces tas sneha ier 5

Chapman v. Meier

edi scpeee ences anenneeentnts 19

Davis v. Bandemer,

rs 24k cencedeseraaeobes 5, 9,13

Favors v. Cuomo,

2014 WL 2154871 (E.D.N-Y. 2014), modified,

2014 WL 3734378 (E.D.N.Y. July 28, 2014) . .3, 19, 20, 22

Gaffney v. Cummings,

esc cdbevassdessncusvibaudes 19

Growe v. Emison,

st Ser ee ed 19

League of United Latin Am. Citizens (LULAC)

v. Perry,

Se PED oc ccccccccccceccces 6, 11, 12, 19

Loeber v. Spargo,

391 Fed. Appx. 55 (2d Cir. 2010)................. 21

w

Cited Authorities

Page

Miller v. Johnson,

a Os De ae tains eee eee 14, 20

Ste. Marie v. Eastern R. R. Ass'n,

Se GEE BED wcccccocccccccucecnes 12

Vieth v. Jubelier,

cbs been ccoe peetndéeees passim

Whitford v. Gill,

Ss vob tbewedineed cecocest 7, 8, 15

CONSTITUTIONAL PROVISIONS

ee re Seukeebbobecceeca x

1

STATEMENT OF THE INTEREST

OF AMICI CURIAE

The New York State Senate is the upper house of

New York’s bicameral system. In the last seven years

it has functioned in a variety of bipartisan coalition

models. Currently the Majority Coalition is comprised of

the Republican Party’s elected representatives and one

individual elected Democratic Party Senator, all of whom

caucus together as the Republican Conference which

governs in coalition with a group of eight Democratic

Party senators functioning as the Independent Democratic

Conference. Together this Majority Coalition, the

Republican Conference and the Independent Democratic

Conference, comprise the working controlling numerical

majority of members. The Majority Coalition has governed

the State Senate in terms of practice and policy and in

turn has governed New York State in partnership with the

Democratic Governor and the New York State Assembly,

which the Democratic Party dominates.

Senator John J. Flanagan, a Republican is elected

by vote of the Senate to be the Temporary President of

the New York State Senate. He also is elected by fellow

Republicans as the Majority Leader of the Republican

Conference of the State Senate.' Senator Jeff Klein is the

Leader of the Independent Democratic Conference.

1. No party’s counsel authored any part of this brief. No

person other than the amici curiae made a monetary contribution

intended to fund the preparation of this brief. Each party has

represented that they have filed with the Court blanket consents

to the filing of amicus curiae briefs in support of either party or

neither party.

2

New York has two major parties, Democratic

and Republican. The ballot also carries minor party

candidates for offices of the Conservative, Independence,

Reform, Green, Women’s Equality and Working Families

Parties. Each party has its own rules for the nomination,

designation and endorsement of its candidates. Party

identification qualifies to vote in only that party’s non-open

party primary elections. Voters may register as “Blank”

indicating no party preference, depriving them, only, of

a vote in any New York primary election. Local Senate

races often include participation by additional and other

parties accorded additional ballot lines established from

election to election based upon highly localized issues such

as lowering property taxes. Senators often are elected

by the participation and votes of what are called these

minor parties, either affirmatively when the candidate

is on the ballot line or by drawing votes from a major

party candidate when they fail to secure a minor party’s

endorsement.

Each State Senator serves districts mapped out by

the process of redistricting. Given that the ballot cast by

each voter is secret, Senators extend their services to

their constituents without regard to political party. Voters

cast their ballots, especially in local elections, for reasons

other than pure party identification. Such reasons include

candidate visibility and access, receiving constituent

services, reach out programs, informational events,

participation in the community, candidate personality,

policy issues, socio-economic status, race, economic beliefs

as well as party identification.

Adopting the social science two party based metric

as accepted by the lower court would upend New York’s

3

previously court sanctioned redistricting method.

New York would be found to be engaged in “partisan

gerrymandering” along with 35 other states. Similarly,

an efficiency gap of greater than 10% was found in New

York and eleven other states.

The Senate redistricting map, using the traditional

redistricting principles, meets all the requirements for

constitutional redistricting. See, Favors v. Cuomo, 2014

WL 2154871(E.D.N.Y. 2014) modified, 2014 WL 3734378

(E.D.N.Y. July 28, 2014).

The district court process would eliminate the very

bipartisan New York Majority Coalition that the district

court is trying to impose in Wisconsin. Upholding the

district court, regarding political gerrymandering by

formula, will directly eliminate the coalition governing the

New York State Senate and create the inevitable harm of

ending bipartisanship, rather than cure it.

SUMMARY OF THE ARGUMENT

The district court failed to identify or adopt a limited

and precise workable standard that would be judicially

manageable to determine the existence of a partisan

gerrymandering such that could be identified as rising

to the level of being unconstitutional. The district court

held that any social science theory in effect will support

a finding of partisan redistricting if it contains a claim to

be able to measure of partisan asymmetry or consists of

any particular technique for demonstrating the durability

of the partisanship including an “efficiency gap” or other

methods from recent conceptual and methodolugica!

advances in social sciences. The formula fails to take

4

into account vital elements of traditional redistricting,

as well as actual voting patterns, which one cannot

discern as party identification driven. It predicates its

finding on a false equivalency of state-wide totals as

providing measures for individual districts. Further, it

presumes that partisan symmetry state-wide is a value in

redistricting. The validity of the test is only measurable

in retrospect after an election and by ignoring all reality-

based variables that go into an election.

The New York State Senate is governed by a multi-

party, multi-member coalition. As proffered, the district

court’s appeal to general social sciences matrices fails to

account for a legislative coalition government as exists in

the State Senate. Such a legislative coalition, transcending

partisanship, cannot be measured by state-wide vote

totals from legislative races. The use of a state-wide vote

totals as a variable to “compare” the number of seats in

the state legislature with state-wide vote totals erases

voter preferences for particular candidates in particular

districts based upon voter specific reasons. Ignoring the

actual district by district vote for specific individuals

undermines the basis of actual one person one vote

jurisprudence. Perniciously, the test advances the concept

of “wasted” votes, an anathema in a Republican democracy.

In arepresentative democracy, no vote is wasted because

legislators represent all their constituents. It ignores the

variables of actual political representation by exalting

shifting social science tests over traditional redistricting

principles.

The test fails to give weight to the votes of minor

parties whose vote totals provide margins of victory for

state legislators in close races. The total state-wide races

5

of major parties do not include state-wide minor parties

or the highly localized issue-based minor parties.

The proposal by the district court is fundamentally

incompatible with the traditional redistricting principles

that has governed the process for the last 55 years after

Baker v. Carr, 369 U.S. 186 (1962). The district court

determination would ensure that the federal courts will be

intimately involved in the drawing of the state legislative

lines, rather than allowing traditional redistricting

principles to govern and thereby plunging each court into

the picking of winners and losers by drawing the states’

legislative lines itself.

ARGUMENT

Introduction

This Court first asserted that in state legislative

redistricting, a claim of partisan gerrymandering

was justiciable more than thirty years ago in Davis v.

Bandemer, 478 U.S. 109,143 (1986) (plurality opinion).

In 2004, this Court re visited the intractable issue in

Vieth v. Jubelier, 541 U.S. 267 (2004) and agreed that

such a phenomenon existed, but divided sharply on

the justiciability of partisan gerrymandering claims,

producing no standard or guidance for lower courts faced

with the claim.

Vieth held unanimously that excessive partisanship in

redistricting is unconstitutional. The four justice plurality

acknowledged that excessive partisanship in redistricting

offends the Constitution - and is therefore “unlawful” -

and also that the “excessive injection of politics” into the

6

redistricting process is fundamentally “[incompatible]

with democratic principles.” 541 U.S. at 292-93 (plurality

opinion). In his concurrence, Justice Kennedy agreed that

“{ajllegations of unconstitutional bias in apportionment

are most serious claims,” explaining that severe partisan

gerrymanders impose burdens “on the representational

rights of voters and parties.” /d. at 311-13 (Kennedy, J.,

concurring in the judgment). The four dissenters likewise

agreed that partisan gerrymandering is unconstitutional.

See Id. at. 317-18 (Stevens, J., dissenting) (“The concept

of equal justice under law requires the State to govern

impartially[, and] ... partisan gerrymanders that are

devoid of any rational justification ... cannot be said

to [be] impartial[].”); id. at 343 (Souter, J., dissenting)

(explaining that “the guarantee of equal protection

condemns [some forms of partisan gerrymandering] as

a denial of substantial equality”); id. at 355 (Breyer, J.,

dissenting) (“The use of purely political considerations in

drawing district boundaries is not a ‘necessary evil’ that

... the Constitution inevitably must tolerate.”). The Court,

however, was unable to agree on a standard by which

partisan gerrymandering claims should be adjudicated to

determine what is or is not unconstitutional in the drawing

of state legislative lines.

Thereafter, regarding congressional line drawing, this

Court in League of United Latin Am. Citizens (LULAC)

v. Perry, 548 U.S. 399 (2006) generated six opinions

with a majority of the Court held that no identifiable

constitutional flaw existed even with the seeming

determination of the Texas legislature to redistrict

midterm with the sole purpose of achieving a Republican

congressional majority. Jd. at 417, see id. at 423 (plurality

opinion), 7d. at 483 (Souter, J., concurring in part) id. at

511 (Scalia, J., concurring in the judgment in part).

7

Regarding state legislative redistricting, the Vieth

court explicitly found that no judicially discernible and

manageable standards exist for adjudicating claims of

political gerrymandering have emerged. /d., 541 U.S. 267,

281. That finding remains true at this writing.

Into this intractable thicket, the district court

in Wisconsin purports to have found the alchemical

Philosophers Stone, which has otherwise eluded every

other court. The majority opinion held that a state

redistricting plan violates the First Amendment and the

Equal Protection Clause when it is (1)“intended to place

a severe impediment on the effectiveness of the votes of

individual citizens on the basis of their political affiliation”:

(2) “ha[d] that effect”; and (3) “cannot be justified on other

legitimate grounds. Whitford v. Gill, 218 F.Supp.3d 837,

884 (W.D. Wisc. 2017) (three judge court) The court based

both the intent and effects prongs of this test around the

concept of entrenchment, the notion that the map drawing

party is likely to remain in power for the entire decennial

period. The district court utilized a metric labelled the

“efficiency gap” (EG) calling it “corroborative evidence

of an aggressive partisan gerrymander.” Whitford, 218

F’. Supp. 3d at 910.

The EG is has not been peer-reviewed or otherwise

validated. It rests on a supposition as to how districts

should be drawn in a two party model with voters adhering

rigorously to partisanship allegiances over the subsequent

decade. The test seeks to measure partisanship by the use

of state-wide vote totals of the two major political parties.

The test is premised upon the comparison of individual

legislative seats to statewide votes. The EG seeks to

measure the difference between state-wide votes for state

8

legislative seats from one political party compared to the

actual percentage of seats held, as in a parliamentary

election. No other court has required that the seats that

a party’s candidates win be proportional to the party’s

state-wide totals. No court should so hold now, given that

single member districts and winner take all elections are

the norm in state legislative elections.

The EG is predicated on the concept of a “wasted vote”,

a contrivance. It posits that a votes are “wasted” when

votes are not “properly distributed.” A vote is purportedly

“wasted” when it is either a vote for a candidate who does

not win the election or it is a vote that is surplus, cast

for a winning candidate in excess of the simple majority

needed to win a two party race, any vote in excess of 50%

of the vote plus one. The EG is calculated by dividing the

“wasted” votes for each party in an election by the overall

votes cast in that election. The percentage difference is

the EG. The Appellees posit further that any EG above

7% will continue to favor the party it benefits for the life

of the plan, decennially, for example, in New York State.

The EG equates this with a measurement of favoritism

that serves to lock out a political party from holding a

majority in the legislative body even if there is a huge

swing in state-wide vote share. Whitford, Id. at 886-7.

The district court’s standard and methodology fail

to comport with the realities of political decision making

by voters, elected officials and exalts a false value more

appropriate for a parliamentary system than a republican

form of government. U.S. Const. art. IV sec. 4.

9

I. The Efficiency Gap Is Of No Utility In Measurement

Of Partisanship In Any Authentic Political System

Which Functions In Coalition As In The New York

State Senate

A. The Use Of A Gross Political Vote As A

Measurement As To Single Member Winner-

Take-All Elections Is A Dangerous And False

Measurement In Objective Reality

The elusive quest for a workable standard that is

limited and precise cannot be solved by the district court

decision. The district court’s use of social science misses

the key point that the political process is not limited to

winning elections. See, Bandemer, 478 U.S. at 132. The

standard that the district court uses a purported metric

that is itself unreliable and undefinable. The observation

of reliable and regular phenomenon is fundamental to

accurate social science. The EG makes no effort to control

for or assess voter decision making, party factionalism

and individual ranges of beliefs within voters and their

application to a particular candidate. In multi-candidate,

multi-office ballots there is ample evidence of ticket

splitting which demonstrates that a vote for a candidate or

a party does not directly or indirectly reflect a preference

for every Democratic or Republican candidate state-wide

across the state. The EG wholly ignores the local electoral

issues that drive the outcomes in local ballot races.

The district court’s test to determine partisanship

requires acceptance of a faulty major premise to anchor its

determination. The district court measured partisanship

by the use of state-wide vote totals of the two major

political parties. The major premise is that redistricting

10

demands that the proportion of state-wide votes for

major party’s candidates should match the proportion of

legislative seats.

This premise is nowhere applicable to the conduct of

representative government. A cast vote is not necessarily

identification with a party and is not a correlative of

partisanship. Using partisan affiliation is an eel-like

measurement, given that voters ticket split, change

political parties affiliation either by public registration or

by secret ballot, over the cycle of the census in significant

numbers. Voters clearly change political party loyalties

from election to election predicated upon persona!

experiences, political views, public or private missteps,

individual candidates and specific hot button issues.

The social science metrics fail to permit conformance

with constitutional norms for its redistricting by requiring

that any political party should receive a specific number

of seats or a projection of party voting strength from

aggregate numbers. There is no basis for such correlation

with partisanship except as it related to pure political

party identification by voting. It would be as if a party in

this Court would win her suit based not on the number

of Justices who are in the majority, but on the overall

number of federal judges in the aggregate who agreed

with that party.

It cannot guarantee the outcomes of an election based

on voter choices, so it could be recalculated after every

election and be the predicate for a challenge to the district

lines every two years in New York after each election

cycle. The social science does not have the value of fixed

numbers as provided by Census Bureau data.

11

The test asserts an undefinable standard predicated

upon methodology that is outcome driven. The system

adopted by the district court has no controls for actual]

variables in local elections. It devalues actual voters’

actual decision making by asserting what party should

win district by district and belittling the actual votes

that it purports to protect and measure. The inference

that a vote for a candidate or a party directly reflects a

preference for every Democrat or Republican state-wide

across the state is misbegotten. The test also infers that

the individual voter acts out of a desire for that particular

party to achieve state-wide gains is likewise misbegotten,

in a state that has long had divided government between

houses of the legislature and between the governor and one

house of the legislature. The gap between major political

parties’ representation in the Senate is closer than the

state-wide vote gap, which is what aids in the creation of

coalition government. Where the voters have determined

that they wish a divided government by keeping the New

York State Senate politically closely divided, the EG and

the social science, if applied to the New York State Senate,

would be skewed, based solely on the fact that Republicans

hold a narrow majority, it would ironically show greater

evidence of a partisan effect than a broad majority and

it would likewise show entrenchment on the basis of a

narrow and close number of votes, despite the fact that

voters of all parties re-elect incumbents based as much

on performance as on partisanship.

Even in a perfect two party ideal state, it is “no more

than a rough measure at best”. See, L.U.L.A.C., 548 U.S.

at 419 (opinion by Kennedy, J.). The EG is a concept of no

practical use in any state except to allow a federal court to

pick winners and losers in races for the state legislators.

12

See, Vieth, 541 U.S. at 308-309 (Kennedy, J. concurring).

It is fallacious to maintain that an endless gaze at a set of

raw numbers permits a court to determine a valid etiology

of complex social phenomena. Even strong statistical

correlation between variables does not automatically

establish causation. Ste. Marie v. Eastern R. R. Ass'n,

650 F.2d 395, 400 (2d Cir. 1981) (Friendly, J.).

Fundamentally the EG seeks to recognize “group”

based rights anchored to political party identification.

Such identification by the vote in election cycles still

remain both elusive and fluid from election to election,

from candidate to candidate and issue to issue. Such a

“group” based rights concept in the area of vote dilution

has been rejected on the basis that vote dilution is

individual and a claim not available to a political party.

L.U.L.A.C., 548 U.S. at 437. There is no authority for this

“value,” especially in New York where the experience in

the State of New York has been shifts in contro] within

districting periods that the EG denies could occur.

There is no state-wide party that has the authority

to select candidates for individual districts. Parties are

organized by each of the 62 counties in New York State

with state wide party committees playing different roles

once the party has selected a nominee either by primary

or by a non-opposed petition. Elections for the State

Legislature are single member clistrict based. Candidates

for the Senate and other local offices petition to get placed

on the ballot as the nominee of their party. Party endorsed

candidates do lose primary elections demonstrating that

the state-wide party has no control over local candidates.

The Conferences and the Coalition is an aggregation of

elected members identified as district-based or county

13

based party candidates and political affiliations evidenced

from the ballot at the last election.

Voters vote for candidates in their districts, on the

basis of individual assessment of the candidate and the

political options and not for a state-wide slate of legislative

candidates put forward by the parties. Bandemer, 478

U.S. at 159 (O’Connor, J., concurring). Local legislators

serve all constituents and not those of one party but their

attendance at functions, distributions of information,

constituent services in dealing with recalcitrant state,

federal and local governments. Voters respond to

individual candidates in their districts, to the constituent

services they receive when needed and to positions on

important issues. The right candidate at the right time

under certain conditions can defeat an incumbent who

loses the faith of his constituents, his political base or

his popularity. The crucial defect in the lower court’s

decision is the presumption that under the EG and any

other suggested social science standard it used is to equate

political gerrymandering with deprivation of minority

party’s capacity to serve its constituents. It posits that

only the state-wide values should control rejecting the face

that local legislators evince the local interests of voters as

well as those on state-wide issues. Often local legislation

is not partisan issue driven and members of one political

party act with member of the other party to achieve the

goals of both.

Apart from the fact that each major parties’ umbrella

contains a wide variety of political views that defeat a

factual claim of exclusion by partisanship, the EG and the

social science applied by the district court fails to take

into account any variable other than vote totals. It ignores

14

the political geography of New York State. It ignores the

impact of the non-contested elections which skew results.

It ignores the fact that far many more Senate districts

in New York City are single party Democratic districts,

where 42% of registered Democrats reside than there are

single party districts of Republicans upstate. New York

City overwhelmingly contributes Democratic legislators

and often the sole competitive race in many local legislative

district seat is the Democratic Party primary election.

In the actual political process in New York State, the

term “efficiency” is of no utility in measuring partisanship,

excessive or otherwise. New York along with at least

eight other states, which allows candidate to run for

office on multiple party lines, the EG does not work as a

partisan assessment because the very concept of fusion

allows for candidates to combine lines to achieve election,

even to go so far as to either run with both major parties

endorsement or to run unopposed by a major party in a

general election.

Thus the district court’s reliance in and appeal to

social science fails to generate a workable standard that is

limited and precise as well as reliable. As a consequence the

ruling will drive federal courts deeply into unprecedented

and intrusive intervention in the state legislative realm of

its province of legislative districting process, not based

upon the precise and limited accurately measurable core

values surrounding immutable conditions, such as race,

but instead upon tenuous basis with no guarantee of its

own constitutionality. Vieth, 541 U.S. at 306 (Kennedy J.,

concurring in the judgment); Miller v. Johnson, 515 U.S.

900, 916 (1995).

15

B. A State House That Governs In Coalition

Between And Among Parties Voids The

Presumptions In The District Court Opinion

Coalition government is designed to specifically give

voice to the minority party members. In the New York

State Senate, coalition governance insures that even losing

voices play a role by and through the forged coalition,

thus giving the lie to the district court determination of

partisanship by party designation. The district court in

pursuit of a misguided concept of political fairness invoked

the ability of voters of a particular political persuasion

to form a legislative majority. Whitford, Jd. at 882-883.

The district court presumes injury to the party by virtue

of the claim that a losing party is completely shut out

of the legislative process. Traditional Republicans and

Progressive Democrats have in coalition passed laws

traditionally identified with opposition parties. The social

science is blind to the fact that in the New York State

Senate, nine of the elected Democrats serve in coalition

with the Republicans providing a majority governing

coalition.

The use of political party vote as a proxy for being

shut out of the political process of the majority is wholly

misbegotten given the coalition influences legislation and

creates adequate representation of every voice at the table

of government. In certain matters, minor parties enact

legislation beneficial to their communities. Large scale

issues with deep ideological divisions are less likely to be

imposed upon the majority coalition from minority party

members, as is appropriate in a representative democracy.

Coalition members, however, have an actual seat at the

table in the terms of advocating for legislation and in

negotiating the state-wide budget.

16

Coalition government allows legislators to transcend

party identities in order to make the value driven decisions

that voters expect of their elected representatives. It

allows coalition members to bring back to their districts

resources and opportunities not tied to any one political

party. Individual legislators have the ability to assess and

act upon local conditions not relative to party concerns but

keyed to district and constituent concerns. In New York

especially party identification is not always a consistent

predictor of individual votes for local] legislators. Coalition

government is the cooperative project that allows

governance to transcend the cold social science record.

In the New York State Senate it is clear that a

coalition governing structure may therefore claim to be

overvaluing the votes of voters in certain district when

that elected Senator participates as part of the majority

coalition, without regard to the political persuasion of

the elected Senator. The district court’s core belief that

a losing political party district by district cannot form a

legislative majority is belied by the reality of New York

State politics.

Thus the use of state-wide numbers to then conclude

that the entirety of the minority party is perforce shut

out of the political process to the degree that it creates

unconstitutional state districts is baseless in the reality

of the New York State Senate’s governance.

17

C. Minor Party Votes Which Are Decisive In Close

Elections In The New York State Senate Are

Excluded From The Wisconsin Social Science

Model

The test in the district court to be even plausible

requires the reduction over every election to nothing

more than “D” and “R” votes on the ballot. In doing so

the district court oversimplified the political process by

eliminating the role of the minor parties. In the case of

the minor parties their endorsement allows persons who

eschew the top of the ticket of the major parties, but wish

to vote for their preferred local representative, exclusive

of identification with a major party. In New York, these

parties include the Conservative, Independence, Green,

Reform, Womens’ Equality and Working Families Parties

as well as the many highly localized issue-based parties.

Minor parties would play no role in the EG partisan

assessment under the district court model, despite the

fact there is evidence of ticket splitting in the State.

Local legislators often outpoll candidates higher on the

ticket. Candidates draw voters for reasons that transcend

political affiliations given the vast amounts of money spent,

the disparate Democratic registration advantage and the

ticket splitting tendencies of New York voters.

Minor parties indirectly and directly determine

outcomes in local legislative races in New York State so

as to undermine the use solely of major party votes. Minor

parties alter outcomes of major party candidate voting

patterns, either affirmatively when the candidate is on

the ballot line or by drawing votes from a major party

candidate when that candidate fails to secure a minor

party’s endorsement

18

Minor parties often endorse the candidate of a major

party and on occasion endorse their own candidate. In

New York members of the state legislature are elected

by virtue of the votes of members of the two majority

parties and the participation of the various state-wide

minor parties and localized issue-based parties.

In the current reapportionment cycle based upon

maps approved by the federal court, in the election of

2016, three Republican Senators won election or re-

election based upon the votes of third parties. In 2014 one

Democrat and one Republican won their election based on

the vote of a third party. In the 2012 cycle, six republican

senators won election or re-election on the basis of third

party voters.

The participation of non-major parties is crucial

to outcomes particular to certain counties or areas by

occasionally provide margins of victory in local races. In

state legislative races and in the New York State Senate

elections, there is ample evidence of ticket splitting in local

races in New York.

The social science of the district court makes no

provision for such minor parties, especially where these

parties do or do not endorse a major party candidate. By

measuring partisanship using only the two major parties,

the EG casts aside votes that express the preference that

actually reflects partisanship that the test pretends to be

testing.

19

Il. Redistricting Of State Legislature Will End

Up Being Endlessly Micro Managed By The

Federal Courts Based Upon A Claim Of Political

Partisanship Given That It Undermines Traditional

Redistricting Standards.

Reapportionment of state legislatures is primarily the

duty and obligation of states and not the federal courts.

Growe v. Emison, 507 U.S. 25, 34 (1993), quoting Chapman

v. Merer 420 U.S. 1, 27 (1975). Reapportionment by any

state legislature is primarily a political task. Gaffney

v. Cummings, 412 U.S. 735, 749 (1973), undertaken by

political actors elected for such purpose. The elusive

nature of identifying partisan gerrymandering might

suggest that the decades-long quest to find a workable

standard with a “limited and precise rationale” to

isolate impermissible levels of partisanship, regarding

state legislatures be abandoned to the measurement of

traditional redistricting principles and assessing invidious

discrimination. Use of the EG alone would invalidate New

York’s redistricting plan just recently approved by a three

judge court. Favors v. Cuomo, 2014 WL 2154871(E.D.N.Y.

2014) modified, 2014 WL 3734378 (E.D.N.Y. July 28, 2014).

Even if a federal court can decide how much partisan-

ness is too much, it is making an exclusively political

judgment committed to the states as one of the most

significant acts a State can perform to ensure citizen

participation in self-governance. LULAC, 548 U.S. at 415.

The coalition in the New York State Senate reflects the

effects of citizen participation by their votes in individual

districts maintains a relatively stable legislature in which

a minority party retains significant representation Vieth,

541 U.S. at 360 (Breyer, J. , dissenting).

20

The standard such as it is proposed by the district

court is assuredly a recipe for epic amounts of litigation

in federal courts over state legislative lines, even

when they meet all traditional redistricting principles

such as compactness, contiguity, respect for political

subdivisions, core communities, communities of interest,

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

requirements of traditional redistricting, including

protecting incumbents and political affiliations, Ala. Leg.

Black Caucus v. Alabama, 134 S. Ct. 1257, 1270 (2015).

Because any voter or organization can make themselves

a plaintiff redistricting litigation becomes the vehicle for

those whose failures at the ballot box an opportunity to

overturn the actual will of the voting public.

The Favors litigation is instructive regarding the

potential consequences of affirmance of the district

court decision. After the failure of the two houses of the

legislature to agree upon Congressional lines, a three

judge court was forced to draw the Congressional lines. A

state plan proposed by the then pre coalition Republican

controlled Senate majority and the Democratic controlled

Assembly was adopted and signed into law by the Governor.

Thereupon various individuals and organizations sued

to overturn the State plan and impose their variants

of plans based either upon racial, ethnic, religious or

other demographics. Plaintiffs sued the Governor and

the majority and minority party legislative leaders. In

the course of the litigation, the putative defendant, the

then-Senate Minority Leader, having been unable to

command enough votes to defeat the bill in the Senate

chamber, functionally aligned with plaintiffs in seeking to

defeat the enacted plan. The lion’s share of the litigation

devolved down to a contest between the Senate Minority

21

defendants seeking to overturn the enacted plan defended

by the Senate Majority defendants and with nothing to lose

politically, seeking to seize a victory in the courts denied

to them on the floor of the Senate. The case stretched over

four years culminating in the three judge court finding

that the plans of Senate in particular was constitutionally

proper according to traditional redistricting principles.

Should the district court be affirmed, the redistricting

process in the states will be a prelude to the guaranteed

litigation in federal court by any one political actor

aggrieved, any loser in the exercise of representative

democracy or a political gadfly. The addition of more

“metrics” will bring every crook and nanny (and every

organization that funds or controls them) into federal

court as a private litigant against the re districting lines

convinced they are gerrymandered into oblivion. See,

e.g. Loeber v. Spargo, 391 Fed. Appx. 55 (2d Cir 2010).

No cycle will be free from litigation poised to claim any

social science metric tested or otherwise as a means to

tie up functional government with the obligation to defend

its political realities to a federal court with little or no

experience of the political geography or factors of the

state of New York.

The federal court litigation will begin with a rummage

through the social sciences to find any “test” that could

be asserted to claim partisanship and will culminate ina

mud wrestling of experts. The result is that the federal

courts wil) be in the business of picking winner's and losers

out of the caldron of social science.

The standard should not impose greater uncertainty,

nor should it not be discernible or manageable by the

22

state actors to whom the obligation of redistricting is

constitutionally delegated. No state legislator would

be able to securely enact a plan confident that it meets

constitutional requirements. Good faith attempts to follow

traditional redistricting principles will be of no value.

There will be no way to divine what will comply with

what is now to be an ever-shifting elusive constitutional

standard set by the federal courts over the state re

districting process. No legislature could draw lines that

would protect it from federal litigation and no party will

know how a future district court would identify a social

science value and impose it.

The consequence of upholding the metric accepted

by the district court will be that no redistricting process

will ever end by the acts of the state legislature as was

contemplated by relegating re districting to the states.

Instead, the losers in the state process will rush through

the doors of the federal courthouse to the detriment of

representative government in the states.

And only the federal court will be able to determine

each and every claim against a legitimately drawn map

because no one will have a thread of an idea of what social

science metric could govern the redistricting. The courts

will assume political responsibility for a process that itself

is fraught with ill will and distrust as demonstrated by the

litigious nature of redistricting. Further the result will

be unprecedented costly and time consuming litigation

initiated by the rival political party, as was done in Favors,

where the Senate Democrats separately litigated against

the Senate Majority. See, Favors, Jd. The consequence will

be a ten year anniversary of docket busting redistricting

cases which drag on almost until the next census and

23

then it all begins again. By the time a redistricting plan

is sanctioned by a federal court, it will be time to begin

a new round of line drawing into the vacuum. In effect

a permanent consent decree will be the consequences

of the amorphous standard of the district court. State

legislatures and state voters are entitled to a degree of

certainty and to be free from repeated invasion by the

federal court.

CONCLUSION

For the foregoing reasons, amici, New York State

Senate Temporary President and Republican Coalition

Leader respectfully requests that the Court reverse the

lower court’s decision.

Respectfully submitted,

Davip L. Lewis

Counsel of Record

LEWIS AND Fore, E'sqs.

225 Broadway, Suite 3300

New York, New York 10007

(212) 285-2290

dlewis@lewisandfiore.com

Counsel for Amici Curiae

August 4, 2017

22

state actors to whom the obligation of redistricting is

constitutionally delegated. No state legislator would

be able to securely enact a plan confident that it meets

constitutional requirements. Good faith attempts to follow

traditional redistricting principles will be of no value.

There will be no way to divine what will comply with

what is now to be an ever-shifting elusive constitutional

standard set by the federal courts over the state re

districting process. No legislature could draw lines that

would protect it from federal litigation and no party will

know how a future district court would identify a social

science value and impose it.

The consequence of upholding the metric accepted

by the district court will be that no redistricting process

will ever end by the acts of the state legislature as was

contemplated by relegating re districting to the states.

Instead, the losers in the state process will rush through

the doors of the federal courthouse to the detriment of

representative government in the states.

And only the federal court will be able to determine

each and every claim against a legitimately drawn map

because no one will have a thread of an idea of what social

science metric could govern the redistricting. The courts

will assume political responsibility for a process that itself

is fraught with ill will and distrust as demonstrated by the

litigious nature of redistricting. Further the result will

be unprecedented costly and time consuming litigation

initiated by the rival political party, as was done in Favors,

where the Senate Democrats separately litigated against

the Senate Majority. See, Favors, Jd. The consequence will

be a ten year anniversary of docket busting redistricting

cases which drag on almost until the next census and

23

then it all begins again. By the time a redistricting plan

is sanctioned by a federal court, it will be time to begin

a new round of line drawing into the vacuum. In effect

a permanent consent decree will be the consequences

of the amorphous standard of the district court. State

legislatures and state voters are entitled to a degree of

certainty and to be free from repeated invasion by the

federal court.

CONCLUSION

For the foregoing reasons, amici, New York State

Senate Temporary President and Republican Coalition

Leader respectfully requests that the Court reverse the

lower court’s decision.

Respectfully submitted,

Davin L. Lewis

Counsel of Record

LEWIS AND Fork, Esqs.

225 Broadway, Suite 3300

New York, New York 10007

(212) 285-2290

dlewis@lewisandfiore.com

Counsel for Amici Curiae

August 4, 2017