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

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## Record

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

## Text

| FILED
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 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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0740%3A56. Public record. Not legal advice.