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

| FILED

AUG -3 2017

FFICE OF T

No. 16-1161 SUPREME CORT EY |

In the Supreme Court of the Anited States

BEVERLY R. GILL, ET AL.,

Appellants,

v.

WILLIAM WHITFORD, ET AL.,

Respondents.

ON APPEAL FROM THE U.S. DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF OF AMICUS CURIAE

REPUBLICAN NATIONAL COMMITTEE

IN SUPPORT OF APPELLANTS

John R. Phillippe, Jr. Michael T. Morley

Dalton L. Oldham Counsel of Record

REPUBLICAN NATIONAL 223 Pawnee Road

COMMITTEE Cranford, N.J. 07016

310 First Street, S.E. (860) 778-3883

Washington, D.C. 20003 michaelmorleyesq@

(202) 863-8500 hotmail.com

Counsel for Amicus Curiae

Republican National Committee

L&GAL PRINTERS LLC, Washington DC e 202-747-2400 e legalprinters.com

QUESTIONS PRESENTED

1. Did the district court violate Vieth v. Jubelirer,

541 U.S. 267 (2004), when it held that it had the

authority to entertain a statewide challenge to

Wisconsin’s redistricting plan, instead of requiring a

district-by-district analysis?

2. Did the district court violate Vieth when it held

that Wisconsin’s redistricting plan was an

impermissible partisan gerrymander, even though it

was undisputed that the plan complies with

traditional redistricting principles?

3. Did the district court violate Vieth by adopting

a watered-down version of the partisan-

gerrymandering test employed by the plurality in

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

4. Are Defendants entitled, at a minimum, to

present additional evidence showing that they would

have prevailed under the district court’s test, which

the court announced only after the record had closed?

5. Are partisan-gerrymandering claims

justiciable?

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............2...ccccseccesescesess i

RB IIE ear ccitisieeeis cncscesscenscusiouninns iv

INTERESTS OF AMICUS CURIAE.........0.......00005- 1

SUMMARY OF ARGUMENT.........00.........c.. eee eeeee ee 1

EERE Selene SIL SHSEDE RT AD Wiehe er 6

I. RESPONDENTS LACK STANDING

TO CHALLENGE WISCONSIN’S

ENTIRE LEGISLATIVE MAP ......0000000000.00..... 8

Il. AN ACTUAL GERRYMANDER

SHOULD BE AN ESSENTIAL

ELEMENT OF ANY POLITICAL

GERRYMANDERING CLAIM ........0.00.......... 13

Ill. THE DISTRICT COURTS

PROPOSED STANDARD FOR

POLITICAL GERRYMANDERING

CLAIMS IS IMPROPER DUE TO

ITS HEAVY RELIANCE ON THE

. i (gf TEES a 22

A. The District Court's

Approach Effectively Requires

Proportional Representation ................. 24

ill

B. The Statewide Efficiency Gap

Concept Is Inconsistent With

This Court’s First Amendment

hats iiteniaceniabiaretesiiekisinnsatnnepinicn 28

1. Political communications cases ..... 29

2. Party nomination cases ................. 30

3. Minor party rights cases................ 32

IV. CAUTION IS WARRANTED IN

DEFINING THE SCOPE OF A

POLITICAL GERRYMANDERING

Ce ee BI ccescccncsscsncstccensdccces soesenes 33

A. Congress Could Assert Authority

Under § 5 of the Fourteenth

Amendment to Enforce Any

Rights Against Political

ii ttiinccinccsniennsiiantis 34

B. Section 2 of the Fourteenth

Amendment Suggests a High

Threshold for Denials of the

Right to Vote Due to Political

I nn scictecanecuensienseninnnere 36

I tihicrennsinnsinininreninesermsinticenintianaaiinaananh 38

iv

TABLE OF AUTHORITIES

Cases Page(s)

Abate v. Mundt,

I tenecenciinag 20

Ala. Legis. Black Caucus v. Alabama,

i opaconnotions passim

Anderson v. Celebrezze,

BE, WI so svosccnveciosconseverssscccssoscoes 32, 37

Baker v. Carr,

Se I... cs cavvecvsncsocanesconsoorsnes 2,12

Bd. of Estimate v. Morris,

a 11-12

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

gg TS ee 3, 16, 19

Brown v. Thomson,

IE ee 14, 20

Buckley v. Valeo,

EEE Rc I no A 5, 30

Bush v. Vera,

Gs aS a a 3, 15, 20

Cal. Bankers Ass'n v. Schuliz,

GEE 12

Cal. Democratic Party v. Jones,

i cscneusseedasecsesasononne 31

Cassell v. Texas,

Es IIE A crsvceccdccscocaccsscsccsvnsesss piaaeail 25

Chapman v. Meier,

Ge Gas. Be icctteccnesstivercicticniinmetinmaaan 25

Citizens United v. FEC,

gt | eRe cane 30

City of Boerne v. Flores,

ee ee ee itcecccnvtcisctdensiiotannann 5, 34, 35

Coleman v. Miller,

ee Oe ee ivcntctcnctssnnscntsiicniodsdtnaniaae 2,11

Colo. Republican Fed.

Campaign Comm. v. FEC,

Oe Bee cies e <nccodcinncccpeiicanesnatmaiianicin 30

Connor v. Finch,

GR Ws Ge CE O Ricicescctnuntseicdiadeistenneaaa 4, 21, 27

Cooper v. Harris,

BAT Bi; GR Be Ge i icccsctcsesisvcsessescecccataginaia 17

Cousins v. Wigoda,

SO re I ee ivccecestsinessovenrsseniiatniaaicnan 31

Davis v. Bandemer,

git Re eernewees ee passim

Democratic Party of the

United States v. Wisconsin

ex rel. LaFollette,

GE es Te eR cece stnectsintetercentsccsncstatamania 3]

Easley v. Cromartie,

atk & __, Reeeet 20

Eu v. San Francisco Cnty.

Democratic Cent. Comm.,

fis & .) yee

vl

FEC v. Natl Conservative

Political Action Comm.,

a censtasenaneetl 30

Fitzpatrick v. Bitzer,

ET

Gaffney v. Cummings,

EE 25

Gomillion v. Lightfoot,

Be Es ME OI ccccacccocceccscccsecesssceses woes. 2-3, 16

Gregory v. Ashcroft,

EE 36

Hunter v. Underwood,

TSE 17

Karcher v. Daggett,

os ccnsnmnnensnecs 14, 20, 21

Katzenbach v. Morgan,

EE 5, 34

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) (““LULAC’).............. 4,11, 24

Mahan v. Howell,

EE 21, 22

Miller v. Johnson,

IL. ccsssannsosnonocunes passim

Mills v. Alabama,

wns cuntonnsnonensees 29

Mobile v. Bolden,

Se EE crccescccscscsccsscoseencedesee 4, 7, 24, 35

vil

N.Y. State Board of Elections v. Lopez-Torres,

Se NS iin ccnenpietecasened 5, 19, 29, 31

N.Y. Times Co. v. Sullivan,

a 29

Nixon v. Shrink Mo. Gov't PAC,

a a ceineianiensenntl 29

O’Brien v. Brown,

409 U.S. 1 (1972).....ecccccecceseeeee ree ae 31

Reynolds v. Sims,

gS ee 4, 14, 20, 21

Richardson v. Ramirez,

ee eB i iiceecccccncccernsnncsteccses silent 17

Shaw v. Hunt,

Be ee sncecnsencesccstetcncceseonssen 10, 17, 18

Shaw v. Reno,

Be i OE IID, 0 ocncncseccnsccosecunaconnes 3, 17, 19

Sinkfield v. Kelley,

ETE RE a a eT 2,9, 10

Spokeo, Inc. v. Robins,

fe ER see ennene 12

Tashjian v. Republican Party,

Es sauseisiesieenmneseniia 32

Taylor v. Louisiana,

I el 25

Timmons v. Twin Cities Area New Party,

RSE aA SERA init as es SES eo 32

vill

United States v. Carolene Prods. Co..,

304 U.S. 144 (1938)............... sigediliaasGsdiainseseetaieieageiica 18

United States v. Hays,

| sl ss Tc: YF;

Vieth v. Jubilerer,

CO

Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp.,

a cedisenmeaianiie 16

Washington v. Davis,

TET TRILL AT TAEE 3,17

Wells v. Rockefeller,

a npionienanien 14

Whitcomb v. Chavis,

TENE passim

White v. Regester,

ESSE I mere re 25

Williams v. Rhodes,

8 ESE aera 5, 32, 37

Constitutional Provisions, Statutes, and Rules

EE AL AAA TE 24

I i scieeenineiis 25

! fk Seen an en 34, 37

las ceili beanies 6

Se sO i eriterencntensceccnmaseomunnéinniiensneammennees 18

a emmeiiaiiag

I a ealliciandinin

Voting Rights Amendments Act of 1982,

Pub. L. No. 97-205, 96 Stat. 131

(June 29, 1982)

(codified at 52 U.S.C. § 10301).................

Other Sources

THE FEDERALIST

(George W. Carey &

James McClellan, eds. 2001).........................

1 CHANCELLOR JAMES KENT,

COMMENTARIES (12th ed. 1873).....................

Daryl Levinson, Rights Essentialism and

Remedial Equilibration,

99 COLUM. L. REV. 857 (1999)................-.-.0.4.

Michael T. Morley, Dismantling the

Unitary Electoral System? Uncooperative

Federalism in State and Local Elections,

111 Nw. U. L. REV. ONLINE 103 (2017).............

Michael T. Morley, Remedial Equilibration

and the Right to Vote Under Section 2

of the Fourteenth Amendment,

2016 U. Cuil. LEGAL FP. B7B...........0-22020000000-s

sows 1

35

INTERESTS OF AMICUS CURIAE!

The Republican National Committee (“RNC”) is a

national political party committee and the national

political organization of the Republican Party of the

United States. The RNC represents the interests of

Republican voters and candidates at all levels

throughout the nation and is dedicated to growing

support for the party and its candidates through its

data science and grassroots programs. It engages in a

wide range of party-building activities including voter

registration, persuasion, and turnout programs, and

supports candidates at the local, state, and national

levels. In short, the RNC has expertise in conducting

political campaigns and how voters respond to them,

and can offer a perspective it hopes will be helpful to

the Court.

SUMMARY OF ARGUMENT

1. The district court erred in holding that

Respondents had standing to challenge Wisconsin’s

statewide legislative map. A voter alleging an

unconstitutional racial gerrymander has standing to

challenge only the boundaries of his own district. Ala.

Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1265

1 Counsel for all parties have consented to the filing of this brief.

Letters evidencing consent are on file with the Clerk. Pursuant

to S. Ct. R. 37.6, amicus curiae certifies that no counsel for a

party authored the brief in whole or part, and no party, counsel

for a party, or person other than amicus, its members, or its

counsel made any monetary contributions to fund the

preparation or submission of this brief.

1

(2015); Sinkfield v. Kelley, 531 U.S. 28, 30 (2000);

United States v. Hays, 515 U.S. 737, 738 (1995). It

follows that a voter lacks standing to challenge the

boundaries of other districts in which she is not

registered, even if they unavoidably affect the shape

of her district. Sinkfield, 531 U.S. at 30.

This Court has rejected the notion that an

individual voter can bring a _ statewide racial

gerrymandering claim. Ala. Legis. Black Caucus, 135

S. Ct. at 1268. A challenge to a state’s complete

legislative map must be comprised of independent

challenges to the shape of each district within the

state. Id. at 1265, 1267. Accordingly, a plaintiff with

standing is necessary to challenge each district.

Assuming political gerrymandering claims are

justiciable, the same reasoning would apply to them.

Because the right to vote is a “personal right,”

Coleman v. Miller, 307 U.S. 433, 469 (1939), a person

lacks standing to challenge alleged dilution or

undervaluation of votes in other districts, Baker v.

Carr, 369 U.S. 186, 206 (1962). Thus, while each

Respondent may challenge the shape of his or her own

district, he or she may not challenge the boundaries

of other districts or the legislative map as a whole.

2. The district court’s proposed standard for

political gerrymandering is flawed because it does not

require the presence of an actual gerrymander. A

gerrymander is a bizarrely shaped district drawn in

defiance of traditional redistricting principles,

including compactness, contiguity, adherence to

natural boundaries, preservation of political

subdivisions, and maintenance of communities of

interest. See, e.g., Gomillion v. Lightfoot, 364 U.S.

2

339, 340 (1960). Should this Court recognize a cause

of action for political gerrymandering, an actual

gerrymander should be an essential element of the

claim. See Bush v. Vera, 517 U.S. 952, 963 (1996);

Vieth v. Jubilerer, 541 U.S. 267, 307 (2004) (Kennedy,

J., concurring); id. at 348 (Souter, J., dissenting);

Davis v. Bandemer, 478 U.S. 109, 165 (1986) (Powell,

J., concurring in part and dissenting in part).

In Bethune-Hill v. Va. State Bd. of Elections, 137

S. Ct. 788, 799 (2017), this Court held that a plaintiff

may challenge racial discrimination in redistricting

without showing that traditional redistricting

principles were violated. Because race is a suspect

classification, however, see Shaw v. Reno, 509 U.S.

630, 642-43 (1993), governmental action taken for

race-based reasons is subject to strict scrutiny and

generally unconstitutional, see Washington v. Davis,

426 U.S. 229, 244-45 (1976), regardless of whether it

amounts to gerrymandering.

Our nation’s “long and persistent history of racial!

discrimination in voting,” as well as the Fourteenth

Amendment’s application of strict scrutiny to racial

classifications, “seem[s] to compel” the conclusion

“that racial and political gerrymanders are [not]

subject to precisely the same constitutional scrutiny.”

Shaw, 509 U.S. at 650. Political gerrymandering

claims do not implicate suspect classifications, and

consideration of party affiliation does not trigger

strict scrutiny. App. 113a (citing cases); Miller v.

Johnson, 515 U.S. 900, 914 (1995).

Accordingly, while a voter may challenge racially

discriminatory redistricting regardless of whether it

amounts to gerrymandering, an actual gerrymander

3

involving one or more districts drawn in violation of

traditional redistricting principles should be required

for any political gerrymandering claim. Indeed, far

from facilitating political gerrymanders, traditional

redistricting principles help mitigate against them.

Connor v. Finch, 431 U.S. 407, 425-26 (1977);

Reynolds v. Sims, 377 U.S. 533, 581 (1964).

3. The district court’s conception of political

gerrymandering claims is also.flawed because it relies

heavily on the novel concept of the “efficiency gap.”

App. 159a, 176a-77a; cf. id. 234a (Griesbach, J.,

dissenting). The efficiency gap is effectively a

measure of whether a political party has received

proportional representation in the legislature. See id.

270a (Griesbach, J., dissenting). This Court

repeatedly has held that the Constitution does not

require states to afford proportional representation,

“however phrased,” Mobile v. Bolden, 446 U.S. 55, 79

(1980), to political, social, or other interest groups, id.

at 75-76; League of United Latin Am. Citizens v.

Perry, 548 U.S. 399, 419 (2006) (““LULAC’”) (plurality

op.). The district court’s reasoning is simply a

variation of the plea for proportional representation

this Court rejected in Whitcomb v. Chavis, 403 U.S.

124, 153 (1971).

Moreover, the model of voters and the electoral

process upon which the efficiency gap is based

contrasts sharply with this Court’s First Amendment

jurisprudence. The efficiency gap amalgamates all

voters statewide, assuming they would consistently

vote for candidates from a particular political party

regardless of the district to which tLey are assigned,

the candidates running, the party’s platform, the

4

salient issues, and. other _ election-specific

considerations. This Court's jurisprudence

concerning political speech, see, e.g., Buckley v. Valeo,

424 U.S. 1 14-15, 51 (1976) (per curiam); political

parties’ associational rights, see, e.g., N.Y. State

Board of Elections v. Lopez Torres, 552 U.S. 196, 202

(2008); and minor party rights, see, e.g., Williams v.

Rhodes, 393 U.S. 23, 31 (1968), in contrast, is

premised on the fundamental belief that voters are

not fungible deterministic party automatons. Rather,

political debate, each party’s platform, and the

candidates nominated to run in each election are the

primary determinants of how an election will turn

out. The efficiency gap’s assumptions about, and

treatment of, voters is flatly contrary to these lines of

authority.

4. Finally, if this Court recognizes a cause of

action for political gerrymandering, it should define

its scope cautiously, because Congress could assert

power to enforce any such right under § 5 of the

Fourteenth Amendment. Section 5 allows Congress

to prohibit not only actual constitutional violations,

but also other state action that is “not itself

unconstitutional,” as a prophylactic measure. City of

Boerne v. Flores, 521 U.S. 507, 520 (1997); ef.

Katzenbach v. Morgan, 384 U.S. 641, 649-50 (1966).

A broad cause of action for political gerrymandering

would upend the balance between the federal

government and states by opening the door to

congressional efforts to oversee, dictate, or even

manipulate the partisan outcomes of state and local

elections.

Furthermore, § 2 of the Fourteenth Amendment

specifies that when a state violates the right to vote,

it may be stripped of its representation in the U.S.

House of Representatives and, by extension, the

Electoral College. The extreme severity of this

constitutional sanction suggests this Court should

adopt a high threshold for what constitutes a violation

of the Fourteenth Amendment right to vote. It should

be reluctant to conclude that such an extreme remedy

is authorized for the adoption of legislative maps that

accord with traditional redistricting criteria.

ARGUMENT

A sharply divided three-judge panel of the U.S.

District Court for the Western District of Wisconsin

contends it has achieved a feat that has stymied this

Court for decades: crafting a judicially manageable

standard for partisan gerrymandering. Cf. Vieth v.

Jubilerer, 541 U.S. 267, 281 (2004) (plurality op.). Its

proposal, however, is a calamitous amalgamation of

elements that each run contrary to this Court’s

redistricting jurisprudence.

The district court held that plaintiffs must first

show that “one purpose” behind a challenged

legislative map “was to entrench a political party in

power.” Appendix to Appellants’ Jurisdictional

Statement (hereinafter, “App.”) 109a-10a. Yet this

Court repeatedly has held that the Constitution, in

assigning primary responsibility for redistricting to

legislatures, see U.S. CONST. art. I, § 4, cl. 1,

contemplates that legislators may seek to gain

partisan advantage in redistricting, Vieth, 541 U.S. at

285; Miller v. Johnson, 515 U.S. 900, 914 (1995).

Second, plaintiffs must establish that, as a result

of district boundaries, political parties that receive

“roughly equivalent statewide vote shares” would

nevertheless win differing numbers of seats in the

legislature. App. 153a-54a. Yet this Court has

rejected the notion that a political party is entitled to

representation in the legislature proportional to its

share of the vote, see, e.g., Mobile v. Bolden, 446 U.S.

55, 78-79 (1980); see also Davis v. Bandemer, 478 U.S.

109, 130-31 (1986), and recognized that statewide

vote aggregates are virtually irrelevant, since each

legislative election is held in a different district

between different candidates who may appeal to

voters for different reasons, see Whitcomb v. Chavis,

403 U.S. 124, 153 (1971).

Finally, plaintiffs must demonstrate that any such

effects are not “justified by the legitimate state

concerns and neutral factors that traditionally bear

on the reapportionment process.” App. 180a.

However, the district court flatly rejected the notion

that a state could defeat a political gerrymandering

claim by showing that it created regularly shaped

districts consistent with traditional, generally

accepted redistricting criteria. Id. 122a.

The Framers of the Constitution recognized it is

“essential” that a republican government “be derived

from the great body of the society, not from an

inconsiderable proportion, or a favored class of it.”

THE FEDERALIST No. 39, at 194 (Madison) (George W.

Carey & James McClellan, eds. 2001). It has been

argued that a cause of action for political

7

gerrymandering can protect “the aggregate minority

of people in a state” from being “wholly overpowered

by the combined action of the numerical majority” and

left with a greatly diminished voice in Congress, a

state legislature, or other legislative body. 1

CHANCELLOR JAMES KENT, COMMENTARIES 231 n.(c)

(12th ed. 1873).

Even if this Court embraces such sentiments, it

should reject the district court’s deeply flawed

attempt to implement them. Part I explains that a

voter has’ standing to challenge political

gerrymandering only of her own district, not the state

as a whole. Part II goes on to demonstrate that,

should the Court hold that political gerrymandering

claims are justiciable, the existence of an actual

gerrymander—a bizarrely-shaped district not drawn

in accordance with traditional redistricting

principles—should be an essential element. Part LII

outlines the numerous problems with the district

court’s heavily reliance on the concept of “efficiency

gaps’ to determine whether political gerrymandering

exists. Finally, Part [V concludes by emphasizing

why caution is warranted in defining the scope of

what may constitute a political gerrymandering

claim, further calling into question the district court's

particularly aggressive holding.

I. RESPONDENTS LACK STANDING

TO CHALLENGE WISCONSIN’S

ENTIRE LEGISLATIVE MAP

Most basically, the district court exceeded Article

ILI’s justiciability limits by allowing Respondents to

8

challenge the composition of Wisconsin’s entire

statewide legislative map, rather than solely the

districts in which they each live. See App. 57a, 221a-

22a.

This Court repeatedly has _ rejected voters’

attempts to challenge alleged gerrymandering of

districts in which they do not reside. Ala. Legis. Black

Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015);

Sinkfield v. Kelley, 531 U.S. 28, 30 (2000); United

States v. Hays, 515 U.S. 737, 739 (1995). In the

context of racial gerrymandering, this Court has held

that a plaintiff has standing to challenge his own

district's boundaries because the harms caused by

gerrymandering “are personal” to that district’s

voters. Ala. Legis. Black Caucus, 135 S. Ct. at 1265.

Voters in racially gerrymandered districts have “been

denied equal treatment because of the legislature’s

reliance on racial criteria” and “may suffer the special

representational harms racial classifications can

cause in the voting context.” Hays, 515 U.S. at 745;

see also Ala. Legis. Black Caucus, 135 S. Ct. at 1265

(noting that voters in a racially gerrymandered

district have standing to challenge it because they

may be “represented by a legislator who believes his

primary obligation is to represent only the members

of a particular racial group”) (quotation marks and

citations omitted).

A voter, however, can neither “suffer those special

harms” nor “personally be[] subjected to a racial

classification” based on the composition of other

districts in which he does not reside. Hays, 515 U.S.

at 745; see also Ala. Legis. Black Caucus, 135 S. Ct. at

1265 (reiterating that the harms of gerrymandering

9

“do not so keenly threaten a voter who lives elsewhere

in the State”). Thus, a voter’s standing to challenge

his own district does not grant him license to

challenge others. Shaw v. Hunt, 517 U.S. 899, 904

(1996); Ala. Legis. Black Caucus, 135 S. Ct. at 1265.

A voter even lacks standing to challenge alleged

gerrymandering of adjacent districts on the grounds

they unavoidably affect the shape of his own.

Sinkfield, 531 U.S. at 30 (rejecting argument that “an

unconstitutional use of race in drawing the

boundaries of majority-minority districts necessarily

involves an unconstitutional use of race in drawing

boundaries of neighboring majority-white districts”).

A plaintiffs complaints about allegedly

unconstitutional gerrymandering in districts in which

he does not reside constitutes, at most, a

nonjusticiable generalized grievance. Hays, 515 U.S.

at 745.

The district court held that these justiciability

doctrines are inapplicable because Respondents

complain about “the effect of [the] statewide

districting map on the ability of Democrats to

translate their votes into seats.” App. 224a-25a. The

court added that, because “[t]he harm is the result of

the entire map” rather than the configuration of a

particular district,” any “individual Democrat has

standing to assert a challenge to the statewide map.”

Id. 225a.

The district court’s standing analysis is flatly

contrary to this Court’s precedents and would have

pernicious consequences. First, in Alabama

Legislative Black Caucus, 135 S. Ct. at 1268, this

Court specifically rejected the concept of statewide

10

gerrymandering challenges. It recognized that

plaintiffs may allege that “every individual district in

a State” suffers from unconstitutional racial

gerrymandering. Jd. at 1265 (emphasis omitted). In

such cases, “neither the use of statewide evidence nor

the effort to show widespread effect can transform a

racial gerrymandering claim about a set of individual

districts”—even a “set” that includes all districts in

the state—“into a separate, general claim that the

legislature racially gerrymandered the State ‘as’ an

undifferentiated ‘whole.” Jd. at 1267; cf. League of

United Latin Am. Citizens v. Perry, 548 U.S. 399, 418

(2006) (““LULAC’”) (plurality op.) (rejecting attempt to

mount statewide political gerrymandering claim, in

part because “partisan aims did not guide every line

[the legislature] drew”). In other words, a claim that

a state’s entire legislative map has _ been

unconstitutionally gerrymandered is really a series of

independent challenges to the constitutionality of

each legislative district within that map. Each such

challenge must therefore be brought by a plaintiff

with standing to assert it. Though Alabama

Legislative Black Caucus arose in the context of racial

gerrymandering, this reasoning—as well as this

Court’s other precedents concerning standing to

challenge alleged gerrymanders—applies with equal

force in the context of political gerrymandering.

Second, Respondents’ First Amendment and

Equal Protection claims concern the legal effect

accorded their votes as a result of Wisconsin’s

legislative district map. See App. 35a, 220a. “[A]

voter's franchise is a personal right.” Coleman v.

Miller, 307 U.S. 433, 469 (1939); see also Bd. of

11

Estimate v. Morris, 489 U.S. 688, 698 (1989). Each

Respondent has standing to challenge the under-

valuation or dilution of his or her own vote, see Baker

v. Carr, 369 U.S. 186, 206 (1962), but not of someone

else’s vote (1.e., voters registered in other districts), see

Cal. Bankers Ass’n v. Schultz, 416 U.S. 21, 51 (1974)

(“{O]Jne has standing only to vindicate his own

rights.”). The fact that each person’s vote plays a role

in determining the partisan composition of a

legislative body does not give a plaintiff standing to

assert other voters’ rights. While the ability of

Respondents’ preferred political party to exercise

power in the Wisconsin legislature depends on the

results of elections in districts other than their own,

Respondents lack a particularized and concrete

interest in the conduct and outcome of those other

elections. Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1548 (2016).

Finally, from a practical perspective, granting

plaintiffs standing would lead to unpredictable and

deleterious consequences. At a minimum, a plaintiff

who does not live in a politically gerrymandered

legislative district would be able to challenge the

composition of other districts in which he is not

registered. Taken to its logical extreme, Respondents’

theory would allow voters in states where political

gerrymandering had not occurred to challenge

congressional redistricting in other states. Plaintiffs

could claim that another state’s redistricting scheme

“entrench[ed]” an opposing political party in power in

the U.S. House of Representatives and “diminish[ed]

the value of the plaintiffs’ votes” by “erecting a barrier

that prevents the plaintiffs’ party of choice from

12

commanding a legislative majority” in the House.

App. 220a. Such facially untenable interstate voter

standing is a direct implication of the district court's

holding.

Thus, while Respondents have standing to

challenge the constitutionality of the boundaries of

the legislative districts in which they reside, they may

not go further and challenge the constitutionality of

either other districts, or the legislative map as a

whole.

Il. AN ACTUAL GERRYMANDER SHOULD

BE AN ESSENTIAL ELEMENT OF ANY

POLITICAL GERRYMANDERING CLAIM

Perhaps the most fundamental flaw with the

district court’s analysis is that it purports to find

political gerrymandering in the absence of any

gerrymandering at all. As the district court dissent

explains, Wisconsin’s redistricting plan “does not

violate any of the redistricting principles that

traditionally govern the districting process.” App.

250a (Griesbach J.,_ dissenting). “Without

gerrymandered districts,” the dissent rightly

concludes, “there is no unconstitutional

gerrymander.” /d. at 258a.

The district court majority, however, held that

“compliance with traditional districting principles”

does not “create[] a constitutional ‘safe harbor’ for

state legislatures.” Jd. at 120a. It insisted, “A map

that appears congruent and compact to the naked eye

may in fact be an intentional and highly effective

partisan gerrymander.” Id. at 122a.

13

Redistricting is the result of “a complex blend of

political, economic, regional, and _ historical

considerations.” Wells v. Rockefeller, 394 U.S. 542,

554-55 (1969) (White, J., dissenting). The essence of

a gerrymander is an unnecessarily bizarrely shaped

district drawn without regard to traditional

redistricting criteria. These traditional criteria

include promoting compactness of districts, ensuring

their physical contiguity, following natural

boundaries, preserving the integrity of political

subdivisions, and protecting communities of interest.

See Vieth, 541 U.S. at 348 (Souter, J., dissenting)

(identifying “contiguity, compactness, respect for

political subdivisions, and conformity with geographic

features like rivers and mountains” as “traditional

redistricting principles”); Miller, 515 U.S. at 916

(recognizing the need for legislatures to follow

“traditional race-neutral districting principles,

including but not limited to compactness, contiguity,

[and] respect for political subdivisions or com munities

defined by actual shared interests”).?

The “gerrymander” derives its name from “an

amalgam of the names of Massachusetts Governor

Elbridge Gerry and the creature (‘salamander’) which

2 See also Brown v. Thomson, 462 U.S. 835, 843 (1983)

(recognizing a _ state's interest in “using counties as

representative districts” is “substantial”); Karcher v. Daggett,

462 US. 725, 784 (1983) (Powell, J., dissenting) (citing

SS of “geographic and political boundaries” as

“plainly. . . relevant to rational reapportionment decisions’);

Reynolds uv. Sims, 377 U.S. 533, 578 (1964) (recognizing that

“provid[ing] for compact districts of contiguous territory” and

“maintain[ing] the integrity of various political subdivisions,”

are “valid considerations”).

14

the outline of an election district he was credited with

forming was thought to resemble.” Vieth, 541 U.S. at

274. The State of Alabama's reconfiguration of the

City of Tuskegee “from a square to an uncouth

twenty-eight-sided-figure” for the sole purpose of

excluding African-American voters is perhaps the

quintessential example of gerrymandering.

Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960); see

also Bandemer, 478 U.S. at 179 (Powell, J., concurring

in part and dissenting in part) (concluding legislative

map was politically gerrymandered in large part

because it resembled a “crazy quilt”).

A regularly shaped district drawn according to

traditional, time-honored, judicially approved,

substantively defensible redistricting criteria, by

definition, is not a gerrymander. See Bush v. Vera,

517 U.S. 952, 963 (1996) (“[T]The neglect of traditional

redistricting criteria is .. . necessary” for a

gerrymandering claim). In Vieth, Justices Souter and

Ginsburg agreed that a plaintiff pursuing a political

gerrymandering claim must begin by “show|[ing] that

the district of his residence paid little or no heed to. . .

those traditional redistricting principles whose

disregard can be shown straightforwardly....” 541

U.S. at 348 (Souter, J., dissenting). Justice Kennedy's

Vieth concurrence similarly suggested that a cause of

action for political gerrymandering should be

available when district lines were drawn for reasons

“unrelated to any legitimate legislative objective.”

Vieth, 541 U.S. at 307 (Kennedy, J., concurring);3 see

> A legislative map drawn according to traditional redistricting

principles is necessarily related to “legitimate legislative

objectives,” regardless of whether it happens to favor a

15

also Bandemer, 478 U.S. at 165 (Powell, J., concurring

in part and dissenting in part) (emphasizing that a

political gerrymandering claim must be resolved “by

reference to the configurations of the districts,” the

“observance of political subdivision lines,” and other

similar criteria).

In Bethune-Hill v. Va. State Bd. of Elections, 137

S. Ct. 788, 799 (2017), this Court held that a plaintiff

is not required to demonstrate that a redistricting

plan “conflicts with traditional redistricting criteria”

to challenge it under the Equal Protection Clause as

impermissibly race-based. The Court acknowledged

that departures from such traditional criteria often

will accompany, and be important circumstantial

evidence of, racially discriminatory redistricting

schemes. Jd. But it left open the possibility that a

voter may “establish racial predominance in the

absence of an actual conflict [with traditional

redistricting criteria] by presenting direct evidence of

the legislative purpose and intent.” Id.; see also

Miller, 515 U.S. at 913 (rejecting “suggest[ion] that a

district must be bizarre on its face before there is a

constitutional violation”).

Despite their label, such “racial gerrymandering”

cases are simply applications of the century-old

principle that the Fourteenth Amendment generally

prohibits states from enacting laws or taking other

actions for racially discriminatory purposes. Vill. of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252, 266-67 (1977); see also Miller, 515 U.S. at 913.

particular political party or less politically advantageous

alternatives existed. App. 256a (quoting Vieth, 541 U.S. at 307

(Kennedy, J., concurring)).

16

Because race is a suspect classification, see Shaw v.

Reno, 509 U.S. 630, 642-43 (1993), facially neutral

laws enacted for race-based reasons are subject to

strict scrutiny, see Washington v. Davis, 426 U.S. 229,

244-45 (1976). Even governmental action that would

be wholly unobjectionable if performed for race-

neutral purposes generally is unconstitutional if

performed for racially discriminatory reasons.

Compare Richardson v. Ramirez, 418 U.S. 24, 53-55

(1974) (upholding _ felon disenfranchisement

provisions enacted without racially discriminatory

purpose), with Hunter v. Underwood, 471 U.S. 222,

233 (1985) (invalidating felon disenfranchisement

provision “motivated by a desire to discriminate

against blacks cw» account of race”).

In the context of redistricting, the Equal

Protection Clause prohibits a state from using race as

the “predominant factor” that motivates its decision

“to place a significant number of voters within or

without a particular district.” Miller, 515 U.S. at 916;

see also Cooper v. Harris, 137 S. Ct. 1455, 1480 (2017)

(“The Equal Protection Clause prohibits the

unjustified drawing of district lines based on race.”).

Such’ race-based redistricting “threaten[s] to

stigmatize individuals by reason of their membership

in a racial group and to incite racial hostility.” Shaw,

509 U.S. at 643. It also “reinforces the perception that

members of the same racial group... think alike,

share the same political interests, and will prefer the

same candidates at the polls.” Jd. at 647. Thus,

plaintiffs who challenge redistricting plans on race-

based grounds are not necessarily alleging racial

gerrymandering per se, but rather invidious racial

17

discrimination, which is unconstitutional regardless

of the form it takes—and regardless of whether it

amounts to gerrymandering. Cf. id. at 649-50

(“Classifying citizens by race .. . threatens special

harms that are not present in our vote-dilution cases”)

(emphasis added).

Plaintiffs in political gerrymandering cases are

very differently situated. They do not bring their

claims as members of a suspect class or “discrete and

insular minorit[y].” United States v. Carolene Prods.

Co., 304 U.S. 144, 152 n.4 (1938). Their party

affiliation is not an “immutable characteristic.” Vieth,

541 U.S. at 287. The gravamen of the harm such

plaintiffs claim to suffer is not stigmatization,

reinforcement of negative stereotypes, or a dignitary

offense, but rather diluted influence in the state

legislature. See App. 220a.

Unlike race, mere consideration of party

membership does not trigger heightened

constitutional scrutiny. Many federal statutes

expressly classify based on party membership in a

way that would be constitutionally and morally

intolerable along racial lines. See, e.g., 52 U.S.C.

§ 20923(c)(1) (specifying “the chair and vice chair” of

tLe Election Assistance Commission “may not be

affiliated with the same political party”); id.

§ 30106(a)(1) (“No more than 3 members of the

[Federal Election] Commission . . . may be affiliated

with the same political party.”).

And this Court repeatedly has recognized that

states may properly consider partisan concerns, at

least to some extent, when redistricting. See, e.g.,

App. 113a (citing cases); Miller, 515 U.S. at 914

18

(noting that redistricting typically “implicates a

political calculus,” requiring numerous balances and

tradeoffs among “various interests”); Bandemer, 478

U.S. at 128 (rejecting proposition that taking “any

political consideration] . . . into account in fashioning

a reapportionment plan is sufficient to invalidate it,”

because “[p]Jolitics and political considerations are

inseparable from districting and apportionment”)

(quotation marks omitted); cf. N.Y. State Board of

Elections v. Lopez Torres, 552 U.S. 196, 205 (2008)

(stating that “smoke-filled rooms’... have long

been an accepted manner of selecting party

candidates’).

In short, this Court’s precedents do not “compel|]

the conclusion that racial and political gerrymanders

are subject to precisely the same constitutional

scrutiny.” Shaw, 509 U.S. at 650. To the contrary,

our nation’s “long and persistent history of racial

discrimination in voting,” as well as “Fourteenth

Amendment jurisprudence, which always has

reserved the strictest scrutiny for discrimination on

the basis of race .. . would seem to compel the opposite

conclusion.” IJd.; see also Bandemer, 478 U.S. at 125

(“That the characteristics of the complaining group

are not immutable or that the group has not been

subject to the same historical stigma may be relevant

to the manner in which the case is adjudicated .. . .”).

While actual gerrymandering is not a necessary

element of a racial discrimination claim under the

Equal Protection Clause, Bethune-Hill, 137 S. Ct. at

799, it should be an essential component of a political

gerrymandering claim, to the extent this Court

chooses to fashion one, cf. Bush, 517 U.S. at 980-81

19

(recognizing that “the bizarre shaping of [dJistricts”

and indifference to “natural or traditional divisions”

is not merely evidence of a gerrymander, but itself is

“part of the constitutional problem”). Accordingly,

districts drawn in accord with traditional

redistricting principles should not be susceptible to

political gerrymandering challenges.

This Court has repeatedly recognized the

importance and legitimacy of these traditional

districting principles. Easley v. Cromartie, 532 U.S.

234, 258 (2001); see also Miller, 515 U.S. at 916.

Geographic compactness, for example, facilitates

“political organization, electoral campaigning, and

constituent representation.” Karcher, 462 U.S. at 756

(Stevens, J., concurring). Maintaining pre-existing

political boundaries is similarly important, especially

for state legislative redistricting, because “[IJocal

governmental entities are frequently charged with

various responsibilities incident to the operation of

state government.” Reynolds, 377 U.S. at 580; see also

Brown, 462 U.S. at 843 (recognizing the state’s

“substantial and legitimate . . . concern{]” in

preserving county boundaries”). Moreover, many

state laws constitute “local legislation, directed only

to the concerns of particular political subdivisions.”

Reynolds, 377 U.S. at 580-81. Additionally,

“[rjesidents of political units such as townships, cities,

and counties often develop a community of interest,

particularly when the subdivision plays an important

role in the provision of governmental services.”

Karcher, 462 U.S. at 758 (Stevens, J., concurring); see

also Abate v. Mundt, 403 U.S. 182, 185 (1971). In

Mahan v. Howell, 410 U.S. 315, 325, 329 (1973), this

20

Court held that “maintaining the integrity of political

subdivision lines” for counties and cities was

sufficiently important to allow population deviations

among districts exceeding 15%.

Far from contributing to political

gerrymandering, traditional redistricting criteria

mitigate against ict. See Reynoids, 377 U.S. at 578-59

(“Indiscriminate districting, without regard for

political subdivision or natural or historical boundary

lines, may be little more than an open invitation to

partisan gerrymandering.”); see also id. at 581

(reiterating that “construct[ing] districts along

political subdivision lines . . . deter[s} the possibilities

of gerrymandering”); Karcher, 462 U.S. at 758

(Stevens, J., concurring) (“Extensive deviation from

established political boundaries is another possible

basis for a prima facie showing of gerrymandering.”).

Indeed, in Connor v. Finch, 431 U.S. 407, 425-26

(1977), this Court ordered the district court to “draw

legislative districts that are reasonably contiguous

and compact, so as to put to rest suspicions” about

potential gerrymandering. The district court’s

approach below, in contrast, leads to the bizarre

conclusion that a state may be forced to draw or adopt

an actually gerrymandered map featuring convoluted

districts that split apart towns or connect distant

regions in order to secure the “correct” number of

seats in the legislature for each political party and

eliminate purported constitutional problems with a

map, such as Wisconsin’s, that accords with

traditional redistricting criteria.

In light of this Court’s longstanding recognition of

traditional redistricting principles as bulwarks

21

against political gerrymandering, this Court should

require a substantial violation or abandonment of

such principles before entertaining such claims. See

Vieth, 541 U.S. at 348 (Souter, J., dissenting); see also

id. at 307 (Kennedy, J., concurring); Bandemer, 478

U.S. at 165 (Powell, J., concurring in part and

dissenting in part).

Ill, THE DISTRICT COURT’S PROPOSED

STANDARD FOR POLITICAL

GERRYMANDERING CLAIMS IS

IMPROPER DUE TO ITS HEAVY

RELIANCE ON THE “EFFICIENCY GAP”

This Court should also reject the district court’s

proposed formulation of a political gerrymandering

standard due to its heavy reliance on the concept of

the “efficiency gap” to demonstrate that Respondents’

“representational rights have been burdened.” App.

159a, see also id. at 176a-77a; cf. id. 234a (Griesbach,

J., dissenting) (labeling the efficiency gap “the center

piece” of Respondents’ case).

Nearly a half-century ago, this Court declared,

“Neither courts nor legislatures are furnished any

specialized calipers that enable them to extract from

the general language of the Equal Protection Clause

of the Fourteenth Amendment the mathematical

formula that establishes what range of possible

deviations is permissible, and what is not.” Mahan,

410 U.S. at 329. The efficiency gap is Respondents’

flawed retort.

To calculate an efficiency gap, a court begins by

separately tallying the total number of purportedly

22

“wasted votes” each political party received in

legislative races throughout the state in the previous

election. App. 160a. A vote is deemed “wasted” if it

was cast for either a losing candidate, or a winning

candidate but was unnecessary because it exceeded

the “50% plus one votes necessary to secure the

candidate’s victory.” Jd. The efficiency gap is “the

difference between the wasted votes cast for each

party, divided by the overall number of votes cast in

the election.” Jd.

Thus, the efficiency gap is a comparative

measure of votes the court chooses to designate as

“wasted,” in the sense they neither led to, nor were

necessary for, an electoral success. App. 160a n.274.

A party with a favorable efficiency gap can “translate,

with greater ease, its share of the total votes cast in

an election into legislative seats.” App. 16la. The

district court added that the efficiency gap is also “a

measure of the proportion of ‘excess’ seats that a party

secured in an election beyond what the party would

be expected to obtain with a given share of the vote.”

Id.

The district court concluded that a substantial

efficiency gap is persuasive evidence of political

gerrymandering. App. 159a, 165a. The fact that

Wisconsin’s legislative map resulted in a pro-

Republican efficiency gap of approximately 10% or

more bolstered Respondents’ political

gerrymandering claim. App. 162a-64a.

As demonstrated below, the efficiency gap is

simply a mechanism for compelling proportional

representation for political parties, which this Court

repeatedly has held is not constitutionally required.

23

Furthermore, the conception of voters and elections

upon which the efficiency gap is based flies in the face

of this Court’s First Amendment jurisprudence across

a wide range of areas. U.S. CONST. amend. I.

A. The District Court’s Proposed

Standard Effectively Requires

Proportional Representation

Perhaps the most fatal flaw in the concept of the

efficiency gap is that it is simply a measure of

proportional representation. See App. 236a

(Griesbach J., dissenting). As the district court

dissent explains, a large efficiency gap means that the

number of seats won by a political party's candidates

was “disproportionately small compared to their

statewide vote totals.” Jd. at 270a (Griesbach, J.,

dissenting).

This Court repeatedly has emphasized that the

Constitution does not require states or other political

subdivisions to afford proportional representation in

legislative bodies, “however phrased,” Mobile, 446

U.S. at 79, to political, social, or other interest groups.

See id. at 75-76, 78 (“The Equal Protection Clause of

the Fourteenth Amendment does not require

proportional representation as an imperative of

political organization. ... [Political groups [do not]

themselves have an independent constitutional claim

to representation ... .”); LULAC, 548 U.S. at 419

(plurality op.) (“[Tjhere is no _ constitutional

requirement of proportional representation .. . .”);

Chapman v. Meier, 420 U.S. 1, 17 (1975).* A group is

not constitutionally entitled to a districting scheme

that will afford it “legislative seats in proportion to its

voting potential.” White v. Regester, 412 U.S. 755,

765-66 (1973).

Bandemer emphasized that the Constitution

requires neither “proportional representation [nor]

that legislatures in reapportioning must draw district

lines to come as near as possible to allocating seats to

the contending parties in proportion to what their

anticipated statewide vote will be.” 478 U.S. at 130

(plurality op.). And, despite Vieth’s repudiation of

Bandemer, it nevertheless reaffirmed that the

Constitution “nowhere says that farmers or urban

dwellers, Christian fundamentalists or Jews,

Republicans or Democrats, must be accorded political

strength proportionate to their numbers.” Vieth, 541

U.S. at 288 (plurality op.).

In Gaffney v. Cummings, 412 U.S. 735, 754 (1973),

this Court affirmed a state’s power to voluntarily

choose to “allocate political power to [its political]

‘ This principle parallels the Court’s recognition that it would be

affirmatively unconstitutional to attempt to manufacture

proportional representation of racial, ethnic, or other social

groups in the other main representative body the Constitution

requires both states and the federal Government to convene:

juries. See U.S. CONST. amend. VI; Cassell v. Texas, 339 U.S.

282, 287 (1950) (holding that, because the Equal Protection

Clause prohibits racial discrimination, “proportional limitation”

of grand jurors based on race “is not permissible”); cf. Taylor v.

Louisiana, 419 U.S. 522, 538 (1975) (holding that, while petit

juries must be drawn from a source fairly representative of the

community,” the Constitution does not require that each jury

“mirror the community and reflect the various distinctive groups

in the population”).

25

parties in accordance with their voting strength.”

Despite its endorsement of state discretion to pursue

proportionality, however, this Court never suggested

such a goal is constitutionally required.

The district court itself inadvertently

demonstrated that an efficiency gap is simply a

stylized measure of a state's deviation from

proportional representation. The court explained

that the efficiency gap “measures the magnitude of a

[redistricting] plan’s deviation from the relationship

we would expect to observe” between the aggregate

number of votes a party's candidates for legislature

receive across all legislative elections in the state, and

the number of “seats” in the legislature that party's

candidates win. App. 169a (emphasis added). Thus,

the court expressly established proportional

representation as the “expectied]” constitutional

baseline, and deviations from that constitutional

idea] as requiring ever-greater justification. Id.; see

also id. at 273a (Griesbach, J., dissenting) (“[T]he

notion that we would ‘expect’ a given number of seats

required imputing the normative judgment that a

party’s seats won must be proportional to the party's

statewide vote totals.”). Despite the district court’s

protestations to the contrary, see App. 167a, the

efficiency gap is essentially a measure of

proportionality, which this Court held is not

constitutionally required.

Indeed, the district court’s efficiency gap analysis

is a variation on the argument this Court rejected in

Whitcomb, 403 U.S. at 153. In that case, inner-city

residents complained that Marion County’s multi-

member state legislative district systematically

26

precluded them from. electing ideologically

sympathetic representatives to the state legislature.

Rejecting their claim, this Court explained that, in a

typical legislative election:

[ajJrguably the losing candidates’ supporters

are without representation since the men they

voted for have been defeated; arguably they

have been denied equal protection of the laws

since they have no legislative voice of their

own. ... But we have not yet deemed it a

denial of equal protection to deny legislative

seats to losing candidates, even in those so-

called “safe” districts where the same party

wins year after year.

Id. at 153 (emphasis added); see also id. at 154-55

(declining to recognize a constitutional claim where a

certain group “has found itself outvoted and without

legislative seats of its own,” so long as its members

are not “being denied access to the political system”).

The Court rejected the notion “that any group with

distinctive interests must be represented in

legislative halls if it is numerous enough to command

at least one seat and represents a majority living in

an area sufficiently compact to constitute a single-

member district.” Jd. at 156.

Likewise, in Connor, 431 U.S. at 428 (Blackmun,

J., concurring), Justice Blackmun reiterated that our

system of “direct territorial representation by single-

member districts... . does not normally provide

electoral minorities with proportional representation

in the legislature.” A group’s ability to win seats

27

depends on “a number of factors,” including not only

its size, but “its geographic dispersion” and “the size

of leyislative districts.” Id.; see also Bandemer, 478

U.S. at 130.

In short, the efficiency gap’s designation of

plaintiffs’ votes as wasted “seems a mere euphemism

for political defeat at the polls.” Whitcomb, 403 U.S.

at 153. Because the district court's strong reliance on

the efficiency gap makes lack of proportionality a key

component of a political gerrymandering claim, this

Court should jettison its entire approach.

B. The Statewide Efficiency

Gap Concept Is Inconsistent

With This Court’s First

Amendment Jurisprudence

Another fundamental problem with the efficiency

gap is that the model of voters and voting behavior

upon which it is based runs directly contrary to this

Court's First Amendment jurisprudence across a

variety of areas. The efficiency gap purports to

measure statewide political gerrymandering by

aggregating supposedly “wasted” votes from all

legislative elections throughout the state. The

implicit assumption behind this calculation is that

most voters are fungible party automatons who would

continue to vote for candidates from a particular party

in election after election, regardless of the district in

which they are placed, the identities of the candidates

running, the parties’ platforms, the major issues in

the election, or any other such circumstances. See

App. 242a (Griesbach, J., dissenting). Without this

28

dubious assumption, the efficiency gap’s statewide

aggregates have virtually no relevance. See id. at

236a (Griesbach, J., dissenting) (pointing out that the

efficiency gap “presupposes that voters are voting for

a statewide party rather than simply for an individual

candidate”).

The Constitution does not require courts or states

to treat voters as deterministic interchangeable

commodities in this manner. To the contrary, this

Court’s First Amendment jurisprudence is based on

the fundamental principles that voters are capable of

engaging in, and being persuaded by, political

discourse; political parties’ candidates and messages

are crucial determinants of electoral outcomes; and a

vote cast for a voter’s preferred candidate is not

“wasted,” regardless of whether it contributes to

electoral success.

1. Political communications cases—

“[P]olitical speech in the course of elections” is “the

speech upon which democracy depends.” Nixon v.

Shrink Mo. Gov't PAC, 528 U.S. 377, 405 (2000)

(Kennedy, J., dissenting). This Court repeatedly has

held that “a major purpose” of the First Amendment

is to “protect the free discussion of government

affairs,” including “discussions of candidates.” Mills

v. Alabama, 384 U.S. 214, 218 (1966); see also NY.

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)

(“[Djebate on public issues should be uninhibited,

robust, and wide-open,” even if it includes “vehement,

caustic, and sometimes unpleasantly sharp attacks on

government and public officials.”).

29

Political debate is so important that this Court has

struck down virtually all restrictions on independent

expenditures that fund political communications. See

Buckley v. Valeo, 424 U.S. 1, 51 (1976) (per curiam)

(invalidating expenditure limits for individuals);

Colo. Republican Fed. Campaign Comm. v. FEC, 518

U.S. 604, 614 (1996) (same for political parties); FEC

vu. Nat'l Conservative Political Action Comm., 470 U.S.

480, 496 (1985) (same for PACs); Citizens United v.

FEC, 558 U.S. 310, 365 (2010) (same for corporations).

This Court has repeatedly afforded such robust

protection to political speech and debate precisely

because “the ability of the citizenry to make informed

choices among candidates for office is essential.”

Buckley, 424 U.S. at 14-15; accord Citizens United,

558 U.S. at 339. In short, this Court’s political speech

jurisprudence is based on the bedrock premise that

political devate—candidates’ communications with

voters and voters’ interactions with each other—plays

a critical role in shaping electoral outcomes. The

efficiency gap’s reductionist view of voters, in

contrast, assumes that public debate of the

candidates and issues pales before the true

determinant of voter behavior: party preference.

2. Party nomination cases—Another

line of First Amendment cases protects political

parties’ fundamental mght of association in the

selection of nominees for office. See Eu v. San

Francisco Cnty. Democratic Cent. Comm., 489 U.S.

214, 224 (1989). Political parties have a First

Amendment right to “choose a candidate-selection

process that will in its view produce the nominee who

30

best represents its political platform.” Lopez-Torres,

552 U.S. at 202. Courts are greatly circumscribed in

their ability to intervene in a party’s candidate

selection process. O’Brien v. Brown, 409 U.S. 1, 4

(1972) (per curiam); accord Cousins v. Wigoda, 419

U.S. 477, 491 (1975); see also Democratic Party of the

United States v. Wisconsin ex rel. LaFollette, 450 U.S.

107, 124 (1981).

One of the main reasons why the Constitution

affords such stringent protection to political parties’

associational rights is the Court’s recognition that

each political party's choice of candidates and

platform is a key determinant of electoral outcomes.

See Cal. Democratic Party v. Jones, 530 U.S. 567, 579

(2000) (“[Bleing saddled with un unwanted, and

possibly antithetical, nominee sould.. . severely

transform [the party].”); see also Eu, 489 U.S. at 231

n.21. A party's nominee is its “ambassador to the

general electorate in winning it over to the party's

views’ on “the most significant public policy issues of

the day.” Jones, 530 U.S. at 575; see also Eu, 489 U.S.

at 224 (recognizing the importance of a party's

decision to “select{] a standard bearer who best

represents the party’s ideologies and preferences”

(quotation marks omitted)); Cousins, 419 U.S. at 489

(recognizing that selection of a party’s presidential

nominee is “a task of supreme importance to every

citizen in the Nation”).

The efficiency gap, in contrast, treats a party’s

nominees and platform as largely irrelevant. Based

on past votes, a person is expected to mechanically

vote for the same party in the future, regardless of

these intra-party processes that the Court regards as

31

integral to electoral outcomes. Cf. Tashjian v.

Republican Party, 479 U.S. 208, 216 (1986)

(recognizing the candidate nomination process as the

“crucial juncture at which the [party’s] appeal to

common principles may be translated into concerted

action, and hence to political power in the

community”). Yet again, the assumptions underlying

the efficiency gap are inconsistent with this Court’s

precedents.

3. Minor party rights cases—Finally, the

efficiency gap’s conception of “wasted votes,” which

are to be minimized or avoided, is inconsistent with

this Court’s caselaw concerning the rights of minor

parties. Though a state’s interests, such as

conducting orderly elections and preventing ballots

from becoming unwieldy, are often sufficient to justify

restrictions that burden minor parties’ rights, see

Timmons v. Twin Cities Area New Party, 520 U.S.

351, 367, 369-70 (1997), this Court has subjected laws

that impose especially burdensome or unjustifiably

discriminatory ballot-access requirements on minor

parties to strict scrutiny. See Anderson v. Celebrezze,

460 U.S. 780, 793-94 (1983); Williams v. Rhodes, 393

U.S. 23, 31 (1968). Under the efficiency gap’s

conception of voting, however, far from protecting the

right to vote, this line of cases undermines it by

creating new opportunities for people to “waste” their

votes on minor parties that are unlikely to seize

control of a legislative chamber.

Thus, the efficiency gap model which lies at the

heart of Respondents’ case, and which formed a

substantial component of the district court's

32

reasoning, is an impermissible proxy for proportional

representation and runs directly contrary to this

Court’s First Amendment jurisprudence throughout

the rest of election law. This Court should therefore

reject the district court’s approach to identifying

impermissible political gerrymandering.

IV. CAUTION IS WARRANTED IN DEFINING

THE SCOPE OF A POLITICAL

GERRYMANDERING CAUSE OF ACTION

A final deficiency in the district court’s conception

of political gerrymandering is that it is simply too

sweeping and aggressive. It places primary weight on

proportional representation of political parties,

substantially undervalues the importance of

traditional redistricting criteria, and invites constant

inquiries into legislators’ subjective intentions to root

out a desire for partisan advantage.

Creating such a broad cause of action for political

gerrymandering would allow Congress to assert far

greater authority to regulate state and local elections

under § 5 of the Fourteenth Amendment,

fundamentally changing the balance of power

between the federal government and states. It would

open the door to congressional attempts to

manipulate the outcomes of state and local elections,

ostensibly as a prophylactic measure to protect

against potential political gerrymandering by

preventing such elections from reaching the “wrong”

partisan results.

Additionally, the severe remedies for violations of

the right to vote set forth in § 2 of the Fourteenth

33

Amendment strongly suggest the Court should be

reluctant to recognize the broad right against political

gerrymandering advocated by Respondents and

adopted by the district court.

A. Congress Would Have Power Under

§ 5 of the Fourteenth Amendment

to Enforce Any Rights Against

Political Gerrymandering

Any cause of action for political gerrymandering

this Court creates will be subject to congressional!

enforcement under § 5 of the Fourteenth Amendment.

U.S. CONST. amend. XIV, § 5. Section 5 allows

Congress to enact laws to “deter[] or remed|[y]

constitutional violations . . . even if in the process it

prohibits conduct which is not itself unconstitutional

and intrudes into ‘legislative spheres of autonomy

previously reserved to the states.” City of Boerne v.

Flores, 521 U.S. 507, 518 (1997) (quoting Fitzpatrick

vu. Bitzer, 427 U.S. 445, 455 (1976)). Congress has

“wide latitude” in exercising this power, so long as

there is a “congruence and proportionality between

the injury to be prevented or remedied and the means

adopted to that end.” Id. at 520.; cf. Katzenbach uv.

Morgan, 384 U.S. 641, 649-50 (1966) (holding that § 5

grants Congress “the same broad powers expressed in

the Necessary and Proper Clause” to enact any

legislation it deems “appropriate” to protect the right

to vote).5

* This Court has yet to expressly resolve the tension between

Boerne, 521 U.S. at 518, and Katzenbach, 384 U.S. at 649-50,

34

While the Constitution grants Congress virtually

plenary power over federal elections, its authority

over elections for state and local offices is limited to

the Spending Clause and § 5 of the Fourteenth

Amendment. See Michael T. Morley, Dismantling the

Unitary Electoral System? Uncooperative Federalism

in State and Local Elections, 111 Nw. U. L. REV.

ONLINE 103, 105-10 (2017). The broader the scope of

a right against political gerrymandering this Court

recognizes, the more power Congress will claim to

“enforce” that right for federal, state, and local

elections under § 5. For example, if this Court adopts

an intent requirement as part of a _ political

gerrymandering claim, see, e.g. Mobile, 446 U.S. at 62-

64 (construing § 2 of the Voting Rights Act to prohibit

intentional racial discrimination that violates the

Constitution), Congress may assert authority to enact

a statute dispensing with it under § 5, see Voting

Rights Amendments Act of 1982, Pub. L. No. 97-205,

§ 3, 96 Stat. 131, 134 (June 29, 1982) (codified at 52

U.S.C. § 10301) (amending Voting Rights Act to

eliminate intent requirement and prohibit certain

disparate racial impacts that do not necessarily

violete the Constitution). Likewise, even if this Court

continues to reject the need for proportionality

between vote totals and legislative seats, Congress

may assert power to require it for e'ections at all

levels as a “preventive” measure. Boerne, 521 U.S.

at 526.

This Court should refrain from defining a right

against political gerrymandering in a way that would

concerning the scope of Congress’ remedial authority over voting

rights.

35

substantially disturb the delicate balance between

the federal government and the states by allowing

Congress to claim broad power to reshape state and

local electoral districts in the name of partisan

balancing, fairness, proportionality, or other such

asserted goals. See Gregory v. Ashcroft, 501 U.S. 452,

460 (1991) (“Through the structure of its government,

and the character of those who exercise government

authority, a State defines itself as a sovereign... .

Congressional interference ... would upset the usual

constitutional balance of federal and state powers.”).

One way of reasonably cabining Congress’ § 5 power

is to clarify that an actual gerrymander—the creation

of one or more bizarrely shaped districts crafted in

disregard of traditional redistricting criteria—-is an

unalterable perquisite of a political gerrymandering

claim. See supra Part II. A broad or ill-defined

standard for political gerrymandering, in contrast,

would leave the door open to partisan congressional

manipulation of state and local races in the guise of

political equity.

B. Section 2 of the Fourteenth

Amendment Suggests a High

Threshold for Denials of the

Right to Vote Due to

Political Gerrymandering

Finally, as the district court acknowledged,

Respondents’ First Amendment claim is inextricably

intertwined with the Fourteenth Amendment right to

vote. See App. 10la-06a (discussing the close

relationship between the First Amendment and

36

voting rights in this Court’s seminal cases) (citing,

inter alia, Anderson, 460 U.S. at 786-87 n.7, 789;

Williams, 393 U.S. at 30-31). Section 2 of the

Fourteenth Amendment, which contains the

Constitution’s only express mention of an affirmative

right to vote, counsels against a broad conception of a

right against political gerrymandering.

Section 2 (as modified by the Nineteenth and

Twenty-Sixth Amendments) provides that, when a

state “denie[s] .. . or in any way abridge[s]” the “right

to vote” in elections for specified federal or state

offices to any U.S. citizens who are at least 18 and

have not been disenfranchised for committing a

felony, that state’s basis of representation in the U.S.

House of Representatives (and, by extension, the

Electoral College) “shall be” proportionately reduced.

U.S. CONST. amend. XIV, § 2. If a legislative map is a

political gerrymander that violates the right to vote of

some fraction of a state’s population, § 2 of the

Fourteenth Amendment authorizes Congress to

reduce the size of that state’s congressional

delegation.

The “extraordinary magnitude” of this penalty

“provide[s] important insight into the scope of the

constitutional right to vote.” Michael T. Morley,

Remedial Equilibration and the Right to Vote Under

Section 2 of the Fourteenth Amendment, 2015 U. CHI.

LEGAL F. 279, 291, 295. While reduction in

representation may not be the only recourse available

for violations of the right to vote, it is illuminating to

consider as “the only remedy mentioned in the

[Fourteenth Amendment’s] text or discussed in the

debates over [its] framing. ... The fact that reduction

37

in representation was authorized as a remedy...

should guide courts in determining the contours and

scope” of the underlying right. Jd. at 296, 298. Its

severity “strongly implies” that the right to vote

protects against “acts that are sufficiently serious to

warrant” such “extreme relief.” Jd. at 297; see also

Daryl Levinson, Rights Essentialism and Remedial

Equilibration, 99 COLUM. L. REV. 857, 885 (1999).

Accordingly, should this Court recognize a cause of

action for political gerrymandering, it should

require—at the very least—an abandonment of

traditional redistricting criteria for the purpose of

disenfranchising or dramatically diluting the voting

power of certain voters.

CONCLUSION

For these reasons, this Court should reverse the

judgment of the U.S. District Court for the Western

District of Wisconsin.

38

Respectfully submitted,

MICHAEL T. MORLEY

Counsel of Record

223 Pawnee Road

Cranford, N.J. 07016

(860) 778-3883

michaelmorleyesq@

hotmail.com

JOHN R. PHILLIPPE, JR.

DALTON L. OLDHAM

Republican National

Committee

310 First Street, S.E.

Washington, D.C. 20003

(202) 863-8500

Counsel for Amicus Curiae

Republican National

Committee

AUGUST 2017

39