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

No. 16-1161 ae

————————r— EE C—O

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 SENATORS JOHN McCAIN AND

SHELDON WHITEHOUSE IN SUPPORT

OF APPELLEES

Kathryn Cahoy Mark W. Mosier

COVINGTON & BURLING LLP Counsel of Record

333 Twin Dolphin Drive, Ryan Mowery

i ca 94065 Alec Webley

COVINGTON & BURLING LLP

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KeAndra Barlow

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Los Angeles, CA 90067

(424) 332-4800 Counsel for Amici Curiae

= pee an Ctamngliains

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE .........................2....1

INTRODUCTION AND SUMMARY OF

I. Partisan Gerrymandering Has Become A

Tool For Powerful Interests To Distort The

an cppucunauantoneeunsen ce 5

A. Vieth Opened The Door To Extreme

| Partisan Gerrymandering............................ 6

B. Dark Money Fuels Partisan

Gerrymandering On Both Sides Of

, SIRES Sl 5 eo il

C. Partisan Gerrymandering Produces

Uncompetitive And Unrepresentative

Districts That Have A Corrosive

Effect On Our Democracy. .........................16

II. The Court Should Curb The Rise Of

Partisan Gerrymandering By Affirming

The District Court’s Decision. .......................... 21

Se aiicrncsiienensssnsnsnstatdiiiniimnnsinenianinnes -aveses .25

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Celebrezze,

i cscleseueaunans 23

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm'n,

etiam 3, 22

Benisek v. Lamone,

2017 WL 3642928 (D. Md. Aug. 24,

ah de ERS ce 10, 11

Comm. for a Fair and Balanced Map v.

Ill. State Bd. of Elections,

835 F. Supp. 2d 563 (N.D. Dl. 2011).............0..... 10

Davis v. Bandemer,

I es ciciauianial 24

Gaffney v. Cummings,

Os scsuunsustepeanens 22

League of United Latin Am. Citizens v.

Perry (LULAC), 543 U.S. 399 (2006)................... 25

Obergefell v. Hodges,

ey ts PI. cccsscuasesiensemomnenenens 25

Powell v. McCormack,

RT a ee 17

Reynolds v. Sims,

Ce endian ERAnins: 21

Vieth v. Jubelirer,

EE

Other Authorities

Bill Allison & Sarah Harkins, Sunlight

Found., Fixed Fortunes: Biggest Corporate

Political Interests Spend Billions, Get

Trillions (Nov. 17, 2014),

https://sunlightfoundation.com/2014/11/17/

fixed-fortunes-biggest-corporate-political-

interests-spend-billions-get-trillions/....:............. 16

America Votes (last accessed Aug. 31, 2017),

https://americavotes.org/about/ ............-.........000 15

Americans Across Party Lines Oppose

Common Gerrymandering Practices, The

Harris Poll (Nov. 7, 2013),

http://www.theharrispoll.com/politics/Ame

ricans_Across_Party_Lines_Oppose_Com

mon_Gerrymandering_Practices.htm1].......... 19, 20

Emily Bazelon, The New Front in the Gerry-

mandering Wars: Democracy vs. Math, N.

Y. Times Mag. (Aug. 29, 2017) .................. 2, 11, 20

Richard Berman, The Democrats’ Dark Money

Hypocrisy, The Hill (May 5, 2016)....................... 15

iv

Nathan S. Catanese, Note, Gerrymandered

Gridlock: Addressing the Hazardous

Impact of Partisan Redistricting, 28 Notre

Dame J. L. Ethics & Pub. Pol’y 323 (2014).....8,

Laurence Cockroft & Anne-Christine

Wegener, Unmasked (2017). .............ccccceccceceveeeees

Betsy Cooper, et al., PRRI, The Divide Over

America’s Future: 1950 or 2050? Findings

From the 2016 American Values Survey

(Oct. 25, 2016),

https://www.prri.org/research/poll-1950s-

2050-divided-nations-direction-post-

Dave Daley, How Democrats Gerrymandered

Their Way to Victory in Maryland, The At-

lantic (June 25, 2017), https://www.theat-

lantic.com/politics/archive/2017/06/how-

deep-blue-maryland-shows-redistricting-

TA |

Fred Dews, A Primer on Gerrymandering and

Political Polarization, Brookings (July 6,

2017), https://www.brook-

ings.edu/blog/brookings-now/2017/07/06/a-

primer-on-gerrymandering-and-political-

14

ER ERLE IRC 18, 20

Martin Gilens & Benjamin I. Page, Testing

Theories of American Politics: Elites, Inter-

est Groups, and Average Citizens, 12 Per-

spectives on Politics, no. 3, Sept. 2014................

19

Matea Gold, Wealthy Donors on Left Launch

New Plan to Wrest Back Control in the

States, Wash. Post (Apr. 12, 2015)......................15

J. Gerald Hebert, Paul M. Smith, Martina E.

Vandenberg, & Michael B. DeSanctis,

A.B.A., The Realist’s Guide to Redistrict-

ing: Avoiding the Legal Pitfalls (2d ed.

Andrew Jackson, Veto Message Regarding the

Bank of the United States (July 10, 1832),

available at

http://avalon.law.yale.edu/19th_century/aj

i ee eiispetaminennd 5

Brian Klaas, The Despot’s Accomplice: How

the West is Aiding and Abetting the

Decline of Democracy (2016)...............-.... 18, 20, 21

Chisun Lee, et al., Brennan Ctr. for Justice,

Secret Spending in the States (June 26,

2016), https://www.brennancenter.org/pub-

lication/secret-spending-states ...................00-s000- 16

Niccolo Machiavelli, The Prince.................c2.00ccceeee000 5

Jane Mayer, Dark Money: The Hidden History

of the Billionaires Behind the Rise of the

TT LE 11

Anthony J. McGann, et al., Gerrymandering

in America; The House of Representatives,

the Supreme Court, and the Future of

Popular Sovereignty (2016)........................6, 7, 8, 9

vi

Members of the U.S. Congress, 115th

Congress,

https://www.congress.gov/members?q={%2

2congress%22:%22115%22,%22chamber%

ES

Stephen Ohlemacher, GOP Gerrymandering

Creates Uphill Fight for Dems in the

House, PBS NewsHour (Mar. 31, 2014),

http://www.pbs.org/newshour/run-

down/gop-gerrymandering-creates-uphill-

ra npadiiotitndnonestnenceses 7

Peter Overby, NPR News Investigations,

From Social Welfare Groups, a River of

Political Influence (Nov. 5, 2013),

http://www.npr.org/2013/11/05/242354030/

from-social-welfare-groups-a-river-of-

A 13

Olga Pierce, et al., How Dark Money Helped

Republicans Hold the House and Hurt Vot-

ers, ProPublica (Dec. 21, 2012),

https://www.propublica.org/article/how-

dark-money-helped-republicans-hold-the-

house-and-hurt-voters ....................0.-000005 12, 13, 14

Redistricting Majority Project,

http://www.redistrictingmajorityproject.co

m/ (last visited Aug. 31, 2017)..........2......cccccecc0eee 12

Redistricting Majority Project, 2012

REDMAP Summary Report (Jan. 4, 2013),

http://www.redistrictingmajorityproject.co

Karl Rove, The GOP Targets State Legisla-

tures, Wall St. J. (Mar. 4, 2010),

https://www.wsj.com/arti-

cles/SB10001424052748703862704575099

FID Scsesseercecctocseseveasiessnabapnbianinnmabients

Secret Donors Fuel Democratic Political

Powerhouse, Ctr. for Pub. Integrity (Nov.

18, 2015),

https://www.publicintegrity.org/2015/11/18

/18875/secret-donors-fuel-democratic-

political-powerhouse ................cccsseseeeeseeceeeeeeees

Peter H. Shuck, The Thickest Thicket:

Partisan Gerrymandering and Judicial

Regulation of Politics, 87 Colum. L. Rev.

SF QUE <ecccossssccovsscvinnesvninsssennmanianititeaininhaintl

Jeffrey Toobin, Drawing the Line, The New

ee Se Gi i anicecncctsecueancnredccceeiiedaaiitaiiiia nas

Views on Power and Influence in Washington,

Assoc. Press-NORC Ctr. for Pub. Affairs

Research (2017), http://www.ap-

nore. org/projects/Pages/Power-and- Influ-

Sheldon Whitehouse, Captured: The

Corporate Infiltration of American

BF ee ccarceccsesicinsciiivemitantaticusvaanaien

vill

Why Democrats are Taking Aim at Gerryman-

dering, The Economist (July 12, 2017),

https://www.economist.com/blogs/econo-

mist-explains/2017/07/economist-explains-

LE ant ee ae S)

ix

INTEREST OF AMICI CURIAE

Amici are U.S. Senator John McCain of Arizona

and U.S. Senator Sheldon Whitehouse of Rhode Is-

land.}

As national political leaders, amici have a strong

interest in the proper functioning of our democracy,

and are witnesses to the symptoms and ill effects of

its distress. As active, democratically elected legisla-

tors of both major political parties, amici are deeply

concerned about the damage excessive partisan redis-

tricting inflicts on the American democratic process.

Amici see firsthand the concerns of constituents

who increasingly view politics as a game run by pow-

erful special interests that have changed the rules to

win the game. We also see why constituents believe

that. We see the age-old problem worsening of an “in-

fluencer class” that the public sees garnering dispro-

portionate rewards at the public’s expense, and we see

gerrymandering as a tool of the influencer class in

that effort.

Americans do not like gerrymandering. They see

its mischief, and absent a legal] remedy, their sense of

powerlessness and discouragement has increased,

deepening the crisis of confidence in our democracy.

We share this perspective. From our vantage point,

' Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici, their members, or their counsel made any monetary

contributions intended to fund the preparation or submission of

this brief. The parties have filed Jetters with the Clerk consent-

ing to the filing of all amicus briefs in this case.

we see wasted votes and silenced voices. We see hid-

den power. And we see a correctable problem.

Amici hope that this bipartisan report from the

political front lines will aid the Court by providing

pragmatic, real-world input on the ways in which par-

tisan gerrymandering undermines our democracy.

These concerns should be central to the Court’s review

of whether the district court correctly held that Wis-

consin’s redistricting scheme constitutes an unconsti-

tutional partisan gerrymander.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case implicates the effective functioning of

American representative democracy. With roots trac-

ing to Patrick Henry and Massachusetts Governor E]1-

bridge Gerry, politically motivated redistricting has

long been a part of American politics. But what began

as a tactic to protect individual incumbencies and to

undercut adversaries has morphed into something

much different today. Partisan gerrymandering is

now accomplished by using sophisticated technol-

ogy—including mapping software, census data, and

voting algorithms—to redraw a state's district lines to

maximize partisan advantage across an entire state.”

This new breed of “bulk” partisan gerrymandering

distorts statewide votes, systematically diluting the

effect of votes based on political affiliation and leading

2 See Sheldon Whitehouse, Captured: The Corporate Infiltration

of American Democracy 83-86 (2017); Emily lon, The New

Front in the Gerrymandering Wars: Democracy vs. Math, N. Y.

Times Mag. (Aug. 29, 2017).

2

to the election of congressional and state legislative

delegations that do not represent the will of the vot-

ers. This practice violates “the core principle of repub-

lican government, namely, that the voters should

choose their representatives, not the other way

around.” Ariz. State Legislature v. Ariz. Indep. Redis-

tricting Comm’n, 135 S. Ct. 2652, 2677 (2015) (inter-

nal quotation marks omitted).

I. A. The rise of extreme partisan gerrymandering

over the past decade can be traced directly to this

Court’s decision in Vieth v. Jubelirer, 541 U.S. 267

(2004). Although partisan gerrymandering existed

before Vieth, the threat of judicial review provided a

strong deterrent that kept states from adopting ex-

tremely gerrymandered districts. Vieth’s refusal to

treat partisan gerrymandering claims as justiciable

effectively removed this threat. State legislatures—

and political operatives seeking to gain and entrench

political power—have viewed this decision as an invi-

tation to redraw districts to push the limit of partisan

advantage. As the American Bar Association ob-

served, “[t]he Court’s recent decisions appear to give

legislators leeway to preserve partisan advantage as

zealously as they like when drawing district lines.”®

B. The increase in partisan gerrymandering in re-

cent years has been bolstered by the growing presence

of “dark money” in the American political system.‘

3 J. Gerald Hebert, Paul M. Smith, Martina E. Vandenberg, &

Michael B. DeSanctis, A.B.A., The Realist’s Guide to Redistrict-

ing: Avoiding the Legal Pitfalls 19 (2d ed. 2010).

4 By “dark money,” we mean money contributed to nonprofit or-

ganizations and used for political purposes without disclosure of

the donor's identity.

3

Special interest groups, fueled by hidden funders with

deep pockets and skin in the political game, are now

focused on influencing redistricting. The payoff for

these groups is obvious: By shaping the decennial re-

districting process, special interest groups can affect

the outcome of every Congressional race in a state for

the next decade. The role of dark money in this pro-

cess is a bipartisan concern, as both Republicans and

Democrats rely on this funding.

C. This Court has already acknowledged “the in-

compatibility of severe partisan gerrymanders with

democratic principles.” Vieth, 541 U.S. at 292. Severe

partisan gerrymandering undermines our democracy,

which is based on fair and open elections that accu-

rately reflect the will of the people and count every

vote equally. When the voters of a state vote one way,

the resulting congressional delegation is more than 2-

1 the opposite way, and the advantaged party inten-

tionally produced that undemocratic result, it should

be obvious that “one person, one vote” has been vio-

lated. This partisan gerrymandering leads voters to

perceive, rightly, that their votes do not matter. In-

deed, we have seen firsthand the growing concerns of

constituents who view politics as a game orchestrated

by powerful special interests whose victories come at

the expense of the American voter.

II. The Court should affirm the district court’s de-

cision. The district court’s test provides a workable

framework for distinguishing between district maps

drawn based on legitimate political considerations

and those constituting unlawful partisan gerryman-

dering. That test is more than sufficient to find an

unconstitutional gerrymander on the facts of this

4

case. The Court need not go beyond these facts and

attempt to create a comprehensive test that can re-

solve all potential partisan gerrymandering chal-

lenges. Beyond remedying the constitutional

violations present in this case, affirming the district

court’s decision will send a clear message that parti-

san gerrymandering will not be tolerated.

ARGUMENT

I. Partisan Gerrymandering Has Become A

Tool For Powerful Interests To Distort

The Democratic Process.

Democracy is not abstract or academic. It is a bat-

tleground on which competing interests exert all the

pressure they can muster. This battleground often

pits special interest groups against a general popula-

tion that wants only to be treated fairly.5

_ §Special interest groups have long influenced the

outcome of elections. But this Court’s decision in Vi-

eth made redistricting a particularly attractive tool for

® This is a long-observed conflict, reflected in the pages of history

from Niccolo Mechiavelli's writings to President Jackson's bank

veto measage. See, ¢.g., Niccolo "Machiavelli, The Prince, ch. IX

(1513) (speaking of “two distinct parties” in a governed society:

one, “the nobles [wha] wish to ie and oppress the people,” oa

two, “the people [who ates Saeco ae

the nobles”); Andrew Jackson, Veto Message

of the United States (July 10, on available at ~ on

lon.law.yale.edu/19th_century/ajveto0l.asp (distinguishing be-

tween “the rich and powerful [who] too 7s bend the acts of

government to their selfish purposes” and the “humble members

of society—the farmers, mechanics, and jaborers—who have nei-

ther the time nor the means of securing like favors to them-

selves’).

these groups. No longer concerned about the prospect

of judicial review, state legislatures now push gerry-

mandering to its limits, and special interests, sup-

ported by dark money, help them do so. The result

has greatly undermined the public’s faith in our de-

mocracy.

A. Vieth Opened The Door To Extreme Par-

tisan Gerrymandering.

Justice Kennedy, in his concurring opinion in Vi-

eth, predicted that “if courts refuse to entertain any

claims of partisan gerrymandering, the temptation to

use partisan favoritism in districting in an unconsti-

tutional manner will grow.” 541 U.S. at 312. That

prediction has come true. The frequency and egre-

giousness of partisan gerrymandering has intensified

in the decade since Vieth, and absent this court’s in-

tervention, the problem is only likely to worsen. With-

out the threat of judicial review, political parties have

every incentive to engage in extreme partisan gerry-

mandering.

Vieth sent a clear signal that the Court was no

longer inclined to intervene in partisan gerrymander-

ing cases.° Vieth’s impact has been felt since 2010—

the first round of redistricting after the decision—as

state governments sought to redraw electoral maps

for partisan advantage more aggressively than ever

6 Anthony J. McGann, et a)., Gerrymandering in America: The

House of Representatives, the Supreme Court, and the Future of

Popular Sovereignty 6 (2016) (“[A}fter Vieth v. Jizbelirer (2004),

state legislatures were willing to district for partisan advantage

far more than they had previously.”).

6

before.’ Observers have recognized that “[(t}he world

changed with the 2010 redistricting. States were no

longer constrained by the threat of judicial challenge

of partisan gerrymanders, and where one party com-

pletely controlled the redistricting process, it often

took full advantage.”®

The redistricting plan in this case provides a good

example of post-Vieth partisan gerrymandering. The

Wisconsin plan ensured that “Republicans would

maintain a majority under any likely voting scenario;

indeed, they would maintain a 54 seat majority while

garnering oniy 48% of the statewide vote. The Demo-

crate, by contrast, would need 54% of the statewide

vote to capture a majority.” Jurisdictional Statement

App. 27a (emphasis added). The plan produced pre-

cisely this lopsided result in the 2012 election that fol-

lowed, in which Republicans won 60 of 99 General

Assembly seats despite receiving only 48.6% of the

statewide vote. Id. at 30a.

Congressional seats have also been subject to

more extreme partisan gerrymandering since Vieth.

In 2012, Republicans gained a 33-seat advantage in

the House, despite receiving more than one million

fewer votes than Democrats.’ Most of this advantage

can be attributed to Republicans successfully tilting

1 Id. at 3.

8 Id. at 17.

* Stephen Ohlemacher, GOP Gerrymandering Creates Uphill

Fight for Dems in the House, PBS NewsHour (Mar. 31, 2014),

http://www.pbs.org/newshour/rundown/gop-gerrymandering-

creates-uphill-fight-dems-house/.

7

the electoral maps in key swing states. In Pennsylva-

nia, Ohio, and Michigan—states carried by President

Obama in 2008 and 2012—Republicans hold 34 out of

48 congressional seats in the wake of the 2010 redis-

tricting process. '°

Pennsylvania provides a good example of Vieth’s

effects. Following the 1990 Census, Pennsylvania's

congressional districts were relatively compact with

few oddly shaped districts, and had little or no parti-

san bias.'! After the 2000 Census, the redistricting

plan had a few more oddly shaped districts and indi-

cations of partisan bias, but the plan was approved by

the district court and affirmed by the Court in Vieth.!”

After the 2010 Census, Pennsylvania's districting

plan changed dramatically, pushing partisan gerry-

mandering to its limits. The previously compact dis-

tricts were largely replaced by districts that are

“either elongated or have tendrils that cut into the

surrounding districts.”!* From the Republicans’ per-

spective, these changes worked: In the 2012 House

elections, Democrats received more votes than Repub-

licans, but the state sent thirteen Republicans and

only five Democrats to Congress. '4

10 See Members of the U.S. Congress, 115th Congress,

https://www.congress.gov/members?q={%22con -

greas%22:%22115%22, %22chamber%22:%22Hous %22}.

1! McGann, supra note 6, at 9.

19 Td. at 11.

18 Jd. at 13.

4 Nathan 8. Catanese, Note, Gerrymandered Gridloch: Addreas-

ing the Hazardous Impact of Partisan Redistricting, 28 Notre

Dame J. L. Ethics & Pub. Pol'y 323, 329 (2014).

8

Scholars have concluded that this Court’s decision

in Vieth was the primary reason for Pennsylvania's

decision to further gerrymander its congressional dis-

tricts.'°5 When the post-2000 districts were drawn,

gerrymandering for political gain could still be mean-

ingfully challenged in the courte, which explains “why

the level of partisan gerrymandering was quite mod-

est in the post-2000 districts compared to the post-

2010 ones, even though the Republicans controlled the

governorship and state legislature in both cases.” !®

The congressional districts adopted after Vieth, in con-

trast, “show the full potential of partisan gerryman-

dering when there is no threat of judicial action.”'’

Republicans have certainly benefited from post-

Vieth gerrymandering, but they are hardly alone in

skewing district lines for political gain. As one com-

mentator noted, partisan gerrymandering is “a decen-

nial sin of every majority party.”'® Where Democrats

have been in control, they have drawn gerrymandered

maps just like their Republican counterparts.

‘6 McGann, supra note 6, at 3. The increase in partisan gerry-

mandering from the 2000 Census to the 2010 Census is clear

even if one controls for a variety of other factors, inchuding urban

concentration, changes in technology, and the requirements of

the Voting Rights Act. Jd. at 4-6, 12.

16 Td. at 12.

17 Id. at 18 ("In the previous round, the Pennsylvania state gov-

ernment had to consider the possibility that the courts would

strike down a blatantly gerrymand districting plan. After

Vieth v. Jubelirer (2004), this was no longer the case.”).

18 Why Democrats are Taking Aim at Gerrymandering, The Econ-

omist (July 12, 2017), bttps://www.economiat.com/blogs/econo-

mist-explains/2017/07/economist-explains-6.

9

Maryland illustrates as much. Following the 2010

Census, Democrats sought to redraw district lines to

improve upon the 6-2 advantage they already enjoyed

in the state’s congressional delegation. Democrats

took aim at Maryland’s sixth district, which had

elected a Republican representative for the previous

two decades. Working with hired data analysts using

sophisticated mapping software, Democrats success-

fully instituted the so-called “7-1 map,” reshaping the

sixth district into what one commentator compared to

a “fire-breathing dragon.”'® The plan shifted almost

70,000 Republicans out of the district in a nakedly

partisan, and successful, effort to unseat its ten-term

Republican incumbent.”

Democrats have also led successful partisan redis-

tricting efforts in Dlinois. In 20)0, Republicans held

11 of Illinois’ 19 House seats. Democrats redrew

the district lines in 2011, they took 12 of Illinois’ 18

seats in the 2012 election. Although challenged by Re-

publicans, a federal district court, relying heavily on

Vieth, upheld the gerrymander despite finding that it

was “a blatant political move to increase the number

of Democratic congressional seats.” Comm. for a Fair

19 Dave pee, How Democrats Gerrymandered Their Way to Vic-

tory in aryland, The Atlantic (@June 25, 2017),

https://www.theatlantic.com/politics/archive/20 1 7/06/how-deep-

blue-maryland-shows-redistricting-is-broken/531492/.

20 As Judge Niemeyer recently observed, “[{t|]his 2011 shuffle ac-

complished the single largest redistricting swing of one party to

another of any congressional district in the Nation.” Benisek v.

Lamone, 2017 WL 3642928, at *15 (D. Md. Aug. 24, 2017) (Nie-

meyer, J., dissenting).

10

and Balanced Map v. Ill. State Bd. of Elections, 835 F.

Supp. 2d 563, 567 (N.D. Il. 2011).?!

In short, partisan gerrymandering has worsened

significantly since Vieth removed the threat of judicial

review. With the 2020 Census quickly approaching,

the Court should curb this pernicious practice.

B. Dark Money Fuels Partisan Gerryman-

dering On Both Sides Of The Aisle.

As state governments become more willing to en-

gage in partisan gerrymandering post-Vieth, a pre-

dictable result has occurred: Special interest groups,

funded by dark money, are playing an increasingly ac-

tive role in redistricting.

Drawing district lines that maximize partisan ad-

vantage is a complicated task. Legislators therefore

turn to outside consultants and organizations, which

offer detailed guidance on how to redraw district

maps. These groups rely on sophisticated mapmaking

software, census data, and partisan voting algorithms

to determine how best to maximize partisan gain.??

This expertise is expensive, but special interest

groups are willing to foot the bill because they recog-

nize the potential return on their investment. Spend-

ing money to help a House candidate in an election

2! See also Catanese, supra note 14, at 331 (discussing Illinois as

an example of a Democratic-controlled gerrymander).

2 See, eg., Benisek, 2017 WL, 8642928, at *19—20; Bazelon, supra

note 2; Jane Mayer, Dark Money: The Hidden History of the Bil-

lionaires Behind the Rise of the Radical Right 411 (2016) (“The

advent of computers had turned redistricting into an expensive,

cynical], and highly precise science.”).

1]

can change the occupant of that seat for the next two

years. But spending to support redistricting can

change every House race in the state for the next dec-

ade.

Financial support from groups accepting dark

money has been crucial to recent gerrymandering ef-

forte, and redistricting groups in most states can take

unlimited amounts of money without disclosing the

source, In early 2010, the Republican State Leader-

ship Committee created the Redistricting Majority

Project (“REDMAP”) with the goal of redrawing elec-

toral maps to benefit Republican candidates.”* In

2010, REDMAP raised more than $30 million—much

of it dark money—to elect majorities in state legisla-

tures in battleground states including Ohio, Michi-

gan, North Carolina, Pennsylvania, and Wisconsin.”

After gaining control of state legislatures, REDMAP

then expanded its efforts to influence the redistricting

of those states’ congressional seats.*°

The Republicans’ redistricting efforts were largely

supported by “opaque nonprofits funded by dark

money, supposedly nonpartisan campaign outfits, and

23 See The Redistricting Majority Project, http://www.redistrict-

ingmajorityproject.com/ (last visited Aug. 31, 2017) (‘Republi-

cans have an sprermenty to create 20-25 new Republican

Congressional the redistricting process over

the next a election cyciea, solidifying a Republican House Ma-

jority.”); Olga Pierce, et al., How Dark Money Helped Republicans

Hol de I ouse and Hurt Voters, ProPublica ‘Den 1, 2012),

https://www. pro p a org/article/how-dark-money-he!ped-re-

publicans-hold-the-house-and-hurt- voters.

4 Pierce, et al., supra note 23.

a6 Jd.

12

millions in corporate donations to achieve Republican-

friendly maps throughout the country.”*® Among the

organizations funding REDMAP were groups with

such seemingly neutral names as American Justice

Partnership, Fair and Legal Redistricting for North

Carolina, and Michigan Redistricting Resource [nsti-

tute.27. The neutral names disguise these organiza-

tions’ underlying partisan agendas.”*

The strategy behind this effort was clear, and the

political intent unmistakable. In 2010, one of RED-

MAP’s early boosters wrote in the Wall Street Journal

that Republicans were targeting state legislatures be-

cause “[h]e who controls redistricting can control Con-

gress."29 REDMAP’s own 2012 Summary Report

highlighted how their “strategy of targeting state leg-

islative races in 2010 led to a Republican U.S. House

% Jd. (“Two tobacco giants, Altria and Reynolds, each 1 oo one in

more than $1 million to the main Republican redistrictin + group,

as did [Karl] Rove's my PAC, American Crossroads; Walma

and the pharmaceutica induatry alao contributed, Other donors,

who gave to the nonprofits Republicans created, may never have

to be disclosed.”).

a7 Id.

2 See, e.g., Peter Overby, NPR News Investigations, From Soc’

Welfare Groups, a River of Political Influence (Nov. 6, 2013),

http//www.npr.org/2019/) 1/05/242364030/from-social-welfare-

4 a-river-of-political-influence (describing American Jus-

artnership as an organization dedicated to legal reform

that has “target[ed) liberal judges for defeat”).

” Karl Rove, The GOP Targets State Legislatures, Wall St. J.

(Mar. 4, 2010), https://www.waj.com/arti-

cles/SB 1000 1424052 74870386270457 70689398044.

13

Majority in 2013.” REDMAP explained: “Drawing

new district lines in states with the most redistricting

activity presented the opportunity to solidify con-

servative policymaking at the state level and main-

tain a Republican stronghold in the U.S. House of

Representatives for the next decade.”®!

The Democratic Party has also supported its re-

districting efforts by accepting “secretive redistricting

funding.”82 For example, as noted above, Maryland

Democrats gerrymandered congressional! districts be-

hind closed doors to preserve their incumbencies

while taking aim at the state’s two remaining Repub-

lican seats. As former governor Martin O'Malley ex-

plained in a deposition: “Part of my intent was to

create a map that, all things being legal and equal,

would, nonetheless, be more likely to elect more Dem-

ocrats rather than less.”® To that end, Democrats

hired outside consultants to redraw the district lines.

Those consultants later testified that their job was to

“see[] if there was a way to get another Democratic

district in the state.”** They succeeded, and Mary-

land’s two Republican seats shrunk to one.

Democrats have also relied on nonprofit organiza-

tions, funded by dark money, for support in redistrict-

ing. Like the Republican groups, these groups have

% The Redistricting Majority Project, 2012 REDMAP Summary

Report @Jan. 4, 2013), http://www.redistrictingmajoritypro-

ject.com/.

81 Jd.

82 Pierce, et al., supra note 23.

38 Daley, supra note 19.

34 Jd.

14

nonpartisan-sounding names, such as Democracy Al-

liance, America Votes, and Patriot Majority USA, that

belie their political agendas.** Patriot Majority USA,

a 601(c)(4) social welfare group not required to pub-

licly disclose its donors, reportedly raised $30 million

in 2014 and “was a major player in the Democrats’

failed bid to retain control of the U.S. Senate” in

2014.36 Unions have reportedly donated to Patriot

Majority USA, as well as to “an array of ‘dark money’

liberal advocacy groups including the 501(c)(4) arms

of the Center for American Progress, National Em-

ployment Law Project, and Partnership for Working

Families—which aren’t required to report who funds

them.”

As troubling as these examples are, amici expect

that the influence of special interests groups and dark

38 See, e.g., About, America Votes (last accessed Aug. 31, 2017),

https://americavotes.org/about/ (describing America Votes as

“the coordination hub of the progressive community,” with “an

eye on redistricting”); Richard Berman, The Democrats’ Dark

Money Hypocrisy, The Hill (May 5, 2016),

pe oe pen a ogs/congress-blog/politica/27888 | -the-demo-

crate-dark-money-h Mateea Gold, Wealthy Donors on

Left Launch New Plan to Back Control in the , Wash.

Post (Apr. 12, 2016), https://www.washingtonpost. com/poli-

tics/wealthy-donors-on-left-launch-pew-plan-to-wrest-back-con-

trol-in-the-states/20 15/04/1 2/cced2fiee-dfd3- 1 1e4-a1b8-

2ed88bc 190d2_story.html?utm_term=.94e6ec28352c (describing

Democracy Alliance as “a cadre of wealthy liberal donors”).

% Michael Beckel, Secret Donors Fuel Democratic Political Pow-

erhouse, Ctr. for Pub. Integrity (Nov. 18, 2015), https://www.pub-

licintegrity.org/20 15/1 1/18/18875/secret-donors-fuel-democratic-

political-powerhouse.

37 Id.

38 Berman, supra note 35.

15

money in redistricting efforts will increase unless this

Court steps in. One recent study found that 38 times

more dark money was spent during the 2014 elections

than in 2006.29 And political groups are gearing up

for the next round of redistricting. Democrats are al-

ready planning for a 2020 redistricting campaign, in-

cluding through groups funded by “dark money,”*°

and Republicans will surely do the same.

This is just one of many ways in which dark

money plagues America’s elections, but it is a signifi-

cant one.

C. Partisan Gerrymandering Produces Un-

competitive And Unrepresentative Dis-

tricts That Have A Corrosive Effect On

Our Democracy.

“Something is rotten in the state of Denmark,”

wrote Shakespeare to convey the notion of disease in

the body politic. Here too, there is a powerful sense

among Americans that something has gone awry.*!

3° Chisun Lee, et al., Brennan Ctr. for Justice, Secret Spending

in the States 3 (June 26, 2016), https://www.brennan-

center.org/publication/secret-spending-states.

#0 Td.

“1 These concerns are well-founded, with recent studies illustrat-

ing the high rewards (a return of nearly 1000-1 for lobbying ex-

penditures) and high stakes (over $700 billion per year for one

subsidy) for America’s influencer class. See Bill ‘Allison & Sarah

Harkins, Sunlight Found., Fixed Fortunes: Biggest Corporate Po

litical Interests Spend Billions, Get Trillions (Nov. 17, 2014),

https://sunlightfoundation.com/201 4/11/17/fixed-fortunes-big-

gest -corporate-political-interests-epend-billions-get-trillions/;

Laurence Cockroft & Anne-Christine Wegener, Unmasked 14

16

The increase in partisan gerrymandering follow-

ing Vieth, fueled by dark money contributions and ad-

vanced technology, distorts our representative

democracy and pollutes Americans’ faith in their po-

litical institutions. This Court has long recognized

that “[t/he true principle of a republic is[] that the peo-

ple should choose whom they please to govern them.”

Powell v. McCormack, 395 U.S. 486, 540—41 (1969)

(quoting Alexander Hamilton in 2 Debates on the Fed-

eral Constitution 257 (J. Elliot ed. 1876)). The current

practice of partisan gerrymandering undermines that

principle. As one commentator recently observed, “[i]t

used to be that the idea was, once every two years vot-

ers elected their representatives, and now, instead,

it’s every ten years the representatives choose their

constituents.” 42

As Republicans and Democrats battle each other

to control redistricting, the real losers are the Ameri-

can people. Sending delegations to Congress that do

not conform to the results of elections :eads to disin-

terested and justifiably disillusioned voters. Ordinary

voters may not identify the dark money forces that

have separated a state delegation’s makeup from that

state’s election results, but they surely see that some

dark force is intermediating to create that anomalous

(2017) (showing a 750-1 ratio); see also http://priceofoil.org/fossil-

fuel-subsidies/.

42 See Jeffrey Toobin, Drawing the Line, The New Yorker, Mar.

6, 2006, at 35 (quoting Stanford Law School Professor Pamela

Karlan); see also Peter H. Shuck, The Thickest Thicket: Portisan

ring and Judicial Regulation of Politics, 87 Colum.

L.. Rev. 1826, 1329 (1987) (gerrymandering raises “profound is-

sues concerning the legitimacy of our representational struc-

tures”).

17

outcome. Realizing that their votes have been gerry-

mandered into near-meaninglessness, many Ameri-

cans are checking out of the process entirely, as

reflected by the lowest voter turnout in 2014 in any

election since 1942.4

When gerrymandering is used to establish safe

districts, the proliferation of those safe seats leads to

a more polarized and dysfunctional political climate.

In safe districts, an incumbent’s biggest threat is often

a primary challenge from a more extreme member of

his or her own party. This threat makes legislators

reluctant to work across the aisle and support bipar-

tisan legislation. Gerrymandering thus worsens “the

hyper-partisanship that paralyzes our politics and

governance.”“ |

Public trust in our democracy is further weakened

by the lack of transparency in how redistricting is

funded. The influx of dark money compounds this

concern, replacing the will of the people with the will

of anonymous special interests and wealthy donors.

Dark money also increases the risk that politicians be-

come beholden to the special interest groups funding

redistricting efforts, rather than to their constituents.

Recent surveys have shown that a significant majority

of Americans believe “it doesn’t matter if they vote,”

because politics and elections are controlled by

“3 Brian Klaas, The Despot’s Accomplice: How the West is Aiding

and Abetting the Decline of Democracy 184 (2016).

44 Fred Dews, A Primer on Gerrymandering and Political Polari-

cation, Brookings (July 6, 2017), https://www.brook-

ings.edu/blog/brookings-now/2017/07/06/a-primer-on-

gerrymandering-and-political-polarization/.

18

wealthy interests.4° This sentiment is bipartisan:

“Democrats and Republicans generally agree that peo-

ple like them, working people, the poor, and small

businesses don’t have enough power in Washington,

and that political lobbyists, Wall Street, large busi-

nesses, and the wealthy have too much influence.”“6

And not without reason: studies have found that “the

preferences of the average American appear to have

only a minuscule, near-zero, statistically non-signifi-

cant impact upon public policy.”47

Americans are particularly troubled by how spe-

cial interest groups are helping to gerrymander state

and federal legislative districts. Across party lines,

64% of Americans believe that redistricting is a tactic

to take power away from voters.“* 71% of Americans

believe that “those who stand to benefit from redraw-

ing congressional districts should not have a say in

45 See, e.g., Betsy Cooper, et a)., PRRI, The Divide Quer America’s

Future: 1950 or 2050? Findings From the 2016 American Values

Survey (Oct. 25, 2016), https://www.prri.org/research/poll-1950s-

2050-divided-nations-direction-post-election/; Views on Power

and Influence in Washington, Assoc. Press-NORC Ctr. for Pub.

Affairs Research (2017), http://www.apnorce.org/pro-

jects/Pages/Power-and-Influence-in-Washi aspx [hereinaf-

ter AP-NORC Poll].

#6 AP-NORC Poll, supra note 45.

47 See Martin Gilens & Benjamin I. Page, Testing Theories of

American Politics: Elites, Interest Groups, and Average Citizens,

12 Perspectives on Politics, no. 3, Sept. 2014, at 564, 675.

48 Americans Across Party Lines Oppose Common Gerrymander-

ing Practices, The Harris Poll (Nov. 7, 2013), http://www .thehar-

rispoll.com/politica/Americans_Across_Party_Lines_Oppose_Co

mmon_Gerrymandering_Practices. html.

19

how they are redrawn.”*9 One Wisconsin senator who

voted for the redistricting plan at issue recently ex-

pressed remorse for his vote, explaining, “When you

talk to people about our government, the thing they

tell you is it’s rigged.”™ Indeed, the process of redis-

tricting merits little faith because drawing district

lines is “among the most easily manipulated and least

transparent systems in democratic governance.”®!

Finally, Americans are not the only ones who have

observed how partisan gerrymandering has under-

mined our political system. America’s democracy has

long stood as a model to the world, a “city on a hill.”5?

Partisan gerrymandering now threatens that role. A

scholar of comparat.ie politics recently remarked that

“the American model is not the only viable one out

there, and .. . other nations may not be insane to look

at it with some sense of distaste.”55 Rooted in part in

our use of partisan gerrymandering, this view creates

“knock-on effects that damage the core of democ-

racy.” 54

That study of different democratic countries con-

cluded that America’s extreme gerrymandering

threatens the very fabric of our democracy and

49 Id.

5° Bazelon, supra note 2.

5! Dews, supra n. 44.

52 See Governor John Winthrop, A Model of Christian Charity

(1630); President Ronald Reagan, A Vision for America, Election

Eve Address (Nov. 3, 1980).

58 Klaas, supra note 43, at 188.

54 Td. at 183.

20

“mak{[es] a mockery of the one person, one vote princi-

ple that is the granite ridge to which democracy

should be anchored.”®° We agree.

II. The Court Should Curb The Rise Of Par-

tisan Gerrymandering By Affirming The

District Court’s Decision.

When it comes to partisan gerrymandering, this

Court can no longer remain on the sidelines. In Reyn-

olds v. Sims, the Court explained that “[a]e long as

ours is a representative form of government, and our

legislatures are those instruments of government

elected directly by and directly representative of the

people, the right to elect legislators in a free and un-

impaired fashion is a bedrock of our political system.”

377 U.S. 533, 562 (1964). The Court should reaffirm

this principle by holding that partisan gerrymander-

ing claims are justiciable and that Wisconsin’s plan

violates the Constitution.

The district court’s test—requiring evidence of

discriminatory intent, a large and durable discrimina-

tory effect, and a lack of a legitimate justification—

provides a clear roadmap for lower courts, grounded

in this Court’s precedents. The test addresses this

Court’s prior concerns by articulating a clear standard

that avoids sweeping in legitimate political conduct.

The district court’s test is manageable, and, more im-

portantly, will impose a needed threat of judicial ac-

countability to constrain future partisan

gerrymandering efforts.

56 Jd. at 186 (internal quotation marks omitted).

21

The first element of the district court’s test—dis-

criminatory intent—provides a workable standard

that addresses the concerns expressed in Vieth. The

district court required an intent “to place a severe im-

pediment on the effectiveness of... votes. ..on the

basis of . . . political affiliation.” Juriedictional State-

ment App. 109a—110a, Unlike the proposed intent re-

quirements addressed in Vieth, this test captures only

those political classifications “applied in an invidious

manner or in a way unrelated to any legitimate legis-

lative objective.” Id. 84a (quoting 541 U.S. at 307

(Kennedy, J., concurring)). The test is also a workable

one, allowing courts to consider different forms of in-

tent evidence including admissions, rejection of more

neutral p!ans for no apparent reason, secrecy and lack

of transparency surrounding the redistricting process,

and unwillingness to include minority party voices.

When politicians admit that their efforts to redraw

district lines were intended to create undemocratic

outcomes, courts should hold them accountable.™

5° A State ordinarily should find safe harbor against any allega-

tion that it acted with discriminatory intent when it entrusts re-

districting to an independent redistricting commiasion. See, ¢.g.,

Avis. State Legislature, 135 8. Ct. at 2652. As this Court recog-

nized implicitly in Gaffney v. Cummings, 412 U.S. 735, 762

(1973), safe harbors could also include districts designed by “a

three-[person] bipartisan Board” rather than a single-party-con-

trolled state legislature, or other processes that incorporate mi-

nority voices and promote public scrutiny and transparency

through openness and publication of proposed and revised mape.

When states teke steps like these to protect redistricting from

partisan influence, they ought rightly to insulate themselves

from cries of foul play.

22

The second element—discriminatory effect—also

addresses the concerns articulated in Vieth. The dis-

trict court required a showing that the redistricting

plan had the “effect” of diluting votes based on politi-

cal affiliation. See Jurisdictional Statement App.

107a—110a. Unlike in prior cases, plaintiffs here focus

on dilution of their votes due to their political affilia-

tions, rather than on any claim to proportional repre-

sentation. Cf. Vieth, 541 U.S. at 308 (Kennedy, J.,

concurring) (rejecting fairness principle based on a

proportionality theory). The Court has recognized

that “the right of qualified voters, regardless of their

political persuasion, to cast their votes effec-

tively .. . rank[s] among our most precious freedoms.”

Anderson v. Celebrezze, 460 U.S. 780, 787 (1983). Vote

dilution is a firmly rooted constitutional injury and

provides a sound basis for the discriminatory effect

test. And as Appellees demonstrate, experts can now

readily measure the dilutive effects of partisan gerry-

mandering through election results, partisan bias, the

“efficiency gap,” and sensitivity testing. These are ex-

actly the sort of advancements Justice Kennedy envi-

sioned when he spoke of “new technologies [that] may

produce new methods of analysis that make more ev-

ident the precise nature of the burdens gerrymanders

impose.” Vieth, 541 U.S. at 312-13.

The final factor—lack of a legitimate justifica-

tion—also speaks to Vieth’s concerns. This part of the

test ensures that courts can distinguish between dis-

trict maps drawn to achieve legitimate objectives and

those based on impermissible partisan considerations.

For example, this element will defeat claims where a

23

non-partisan explanation, such as geographical distri-

bution of voters, accounts for the map’s alleged dis-

criminatory effect. Jurisdictional Statement App.

217a—218a. This element appropriately guarantees

that legitimate legislative decisions will not be

lumped in with nake?4 retaliation based on party affil-

iation.

The Court should affirm the district court's test.

But even if the Court concludes that the test has not

adequately resolved the concerns expressed in Vieth,

the Court should, at a minimum, hold that partisan

gerrymandering claims are justiciable. As discussed

above, the Vieth plurality’s retreat from Davis v.

Bandemer, 478 U.S. 109 (1986), has resulted in more

frequent and extreme gerrymandering at the expense

of our democracy. See supra Part I.

Moreover, the plurality’s reasons for deeming par-

tisan gerrymandering claime non-justiciable are un-

persuasive. For example, the plurality relied in part

on Congress's power to make or alter redistricting

lines. Vieth, 541 U.S. at 275-77. But the Constitution

leaves room for both Congress and the courts to rem-

edy the problem of partisan gerrymandering. Nothing

in Article I, Section 4 provides Congress with exclusive

authority to modify congressional districts. And the

question for courts is not what districts should look

like, but whether partisan forces have manipulated

the process to dilute votes based on political affilia-

tion. ,

Even if the democratic process could prevent ex-

cess partisan gerrymandering in some cases, the

Court must still step in where, as here, the democratic

process has been used to violate citizens’ fundamental

24

rights. See League of United Latin Am. Citizens v.

Perry (LULAC), 543 U.S. 399, 415 (2006) (Kennedy,

J.) (“Our precedents recognize an important role for

the courts when a districting plan violates the Consti-

tution.”); Obergefell v. Hodges, 135 S. Ct. 2584, 2605

(2015) (“[T]he Constitution contemplates that democ-

racy is the appropriate process for change, so long as

that process does not abridge fundamental rights.”).

The Vieth plurality incorrectly suggested that

Congress alone can solve the problem of partisan ger-

rymandering. The facts on the ground since Vieth

demonstrate that the political process cannot provide

an adequate solution. Judicial review is a necessary

ingredient to restoring our democracy. This Court

should hold that partisan gerrymandering claims are

justiciable and that the Wisconsin redistricting plan

is unconstitutional.

CONCLUSION

For the foregoing reasons, and those in Appellees’

brief, the Court should affirm the district court’s deci-

sion.

25

Kathryn Ca

COVINGTON & G LLP

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Suite 700

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(650) 632-4700

KeAndra Barlow

COVINGTON & BURLING LLP

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Suite 3500

Los Angeles, CA 90067

(424) 332-4800

September 2017

26

Respectfully submitted,

Mark W. Mosier

Counsel of Record

Ryan Mowery

Alec Webley

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

MMOSIER@COV.COM

(202) 662-6000

Counsel for Amici Curiae