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

FILED

No. 16-1161 | SOREN CoUeL OS

RECORD

onare AUG -4 2017

In the Supreme Court of the Hnited States

BEVERLY R. GILL, et ai.,

Appellants,

Vv.

WILLIAM WHITFORD, et ai.,

ee Appellees.

On Appeal from the United States

District Court for the Western District of Wisconsin

BRIEF OF REPUBLICAN STATE LEADERSHIP

COMMITTEE AS AMICUS CURIAE

IN SUPPORT OF APPELLANTS

Matthew Raymer Efrem M. Braden

Vice President and Counsel of Record

General Counsel Katherine L. McKnight

Republican State Richard B. Raile

Leadership Committee Baker & Hostetler LLP

1201 F Street, NW 1050 Connecticut Avenue NW

Suite 675 Suite 1100

Washington, DC 20004 Washington, DC 20036

(202) 448-5160 (202) 861-1504

mraymer@rslc.gop mbraden@bakerlaw.com

kmcknight@bakerlaw.com

rraile@bakerlaw.com

Counsel for Amicus Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C.~- 800.890.5001!

i

Table of Contents

EEC TC PET OCCT T TT eee ii

Interest of the Amicus Curiae ...............4.. 1

Introduction and Summary of Argument......... 2

Die.) in sadetnaeban needle bent waewene aos 6

I. There Is No Cognizable Claim Here Under

Familiar and Well-Developed Constitutional

Rc dna eeweuepulepeae ka ae eae s'¢ 6

A. No Familiar and Well-Developed Equal-

Protection Standard Has Been Violated ... 10

B. No Familiar and Well-Developed

Fundamental-Right or Liberty-Interest

Standard Has Been Violated ............ 16

C. No Familiar and Well-Developed

First Amendment Standard Has Been

ec ce tevaden eat rok as cone tees 23

D. Familiar and Well-Developed Standards Do

Not Support Relief for Alleged Political-

Gerrymandering Claims in the Current

oss ce eew nate eee cen 26

II. Departure from Familiar and Well-Developed

Standards Is Not Warranted Because the

Alleged Harms of Gerrymandering Are Not

es 6c eekee dade ed heen de bus 31

I, a oe 35

il

Table of Authorities

CASES

Anderson v. Celebrezze,

TTT ee sake a eeu 16, 18

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n,

ys IE 6b cn-on.nc oelseessncee an 8

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm'n,

997 F. Supp. 2d 1047 (D. Ariz. 2014) ......... 7

Ashcroft v. Iqbal,

ee ae. a ea ides ee ose 23

Babbitt v. United Farm Workers Nat'l Union,

eS cn ss ka ae heel ebe ones 6 24

Baker v. Carr,

DEE wc ccoctocccessseee passim

Bantam Books, Inc. v. Sullivan,

ee dle saa obg ae Bead e's 23

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005) ............. 24

Bridges v. Gilbert,

557 F.3d 641 (7th Cir. 2009) ............... 23

Bruner v. Baker,

506 F.3d 1021 (10th Cir. 2007) ............. 24

Burdick v. Takushi,

i dy o'g bd oe So cue’ 16, 18

lil

Cal. Democratic Party v. Jones,

PES vc occcaecccrceees 4, 23, 25

Chapman v. Meier,

ED nin cane se eek een ueeun alt 6

City of Cleburne, Tex. v. Cleburne Living Ctr.,

th Se 11, 12, 13, 27

Colegrove v. Green,

ED st ce eae beeeeeee ee 2, 30

Connor v. Finch,

re ey usiee mean 6

Corbett v. Sullivan,

202 F. Supp. 2d 972 (E.D. Mo. 2002) ......... 7

Cox v. Larios,

se a ae agin 17

Crawford v. Marion County Election Bd.,

SE GPS ED ccc cccccccccss 3, 4, 16, 18

Davis v. Bandemer,

8 passim

Dye v. MeKeithen,

856 F. Supp. 303 (W.D. La. 1994) .......... 7,8

Easley v. Cromartie,

a rs Se Oo ae 7

Elrod v. Burns,

ee oe ek ow ee sewn 4, 23

Essex v. Kobach,

874 F. Supp. 2d 1069 (D. Kan. 2012) ......... 7

iv

Evenwel v. Perry,

No. A-14-CV-335, 2014 WL 5780507 (W.D. Tex.

rr as os Went + bas boas bok Us bas 7

F.C.C. v. Beach Comme’ns, Inc.,

ED «Cees cess suesranwne 13

Gaffney v. Cummings,

PP EEE Svcccsveccevecvess passim

Gorin v. Karpan,

775 F. Supp. 14380 (D. Wyo. 1991)............ 8

Graves v. Barnes,

446 F. Supp. 560 (W.D. Tex. 1977) ........... 8

Growe v. Emison,

s,m k aa hd be 6¥ 6 O86 ae 7

Gulf, C. & S. F. Ry. Co. v. Ellis,

ee are at bogies des oars. 0 10

Harris v. Ariz. Indep. Redistricting Comm'n,

PP es EE 6s cc bcc ceceeneses 16, 17

Harris v. McCrory,

No. 1:13-cv-949, 2014 WL 12600710 (M.D.N.C.

Cet ehie bist hue bee eeed es 7

Hill v. City of Pine Bluff, Ark.,

696 F.3d 709 (8th Cir. 2012) ............... 24

Johnson v. Mortham,

926 F. Supp. 1460 (N.D. Fla. 1996)........... 7

Keenan v. Tejeda,

200 F.3d 252 (Gth Cir. 2002) ............6..:. 24

Kostick v. Nago,

960 F. Supp. 2d 1074 (D. Hawaii 2013) ....... 7

LaComb v. Growe,

541 F. Supp. 160 (D. Minn. 1982) ............ 8

Larios v. Cox,

300 F. Supp. 2d 1320 (N.D. Ga. 2004) ....... 17

League of United Latin Am. Citizens v. Perry,

Dg one kc cb cweceonrese 7,9,17

Lochner v. New York,

en wb kewene tt 20

Mass. Bd. of Ret. v. Murgia,

ewe ee eeeesese 13

Mezibou v. Allen,

411 F.3d 712 (6th Cir. 2005) ............... 24

Miller v. Johnson,

3 re 2,6, 11,12

Montes v. City of Yakima,

No. 12-cv-3108, 2015 WL 11120964 (E.D. Wa.

Tee Ne aes il te bet ae eae eek 7

NAACP v. Austin,

857 F. Supp. 560 (E.D. Mich. 1994) .......... 7

New York v. United States,

ee cee anehouweseea 51

N.Y. State Bd. of Elections v. Lopez Torres,

ae ie a 26

O’Sullivan v. Brier,

540 F. Supp. 1200 (D. Kan. 1982) ............ 8

Paige v. Gray,

437 F. Supp. 137 (M.D. Ga. 1977) ............ 8

Perry v. Perez,

EI He 7

Regents of Univ. of California v. Bakke,

SER el a 3

Reynolds v. Sims,

ee ee wae we 2,6,18

Shaw v. Reno,

er 11,12

Tashjian v. Republican Party of Conn..,

eT Gs EE og ccc cc tec ece 4, 5, 23, 25

Terrazas v. Clements,

537 F. Supp. 514 (N.D. Tex. 1982) ........... 8

Thornburg v. Gingles,

I ee es ecece wes 4, 20, 21

United States v. Carolene Prods. Co..,

I sc cas ea cee bsseeene 3, 29

Vieth v. Jubelirer,

Se BE occ cee eccvcescene passim

Village of Arlington Heights v. Metropolitan

Housing Development Corp.,

IE vc cease ss cnnceace 10, 12

Voinovich v. Quilter,

ee a aa “Sie ave Ww OE 7

vii

Wash. State Grange v. Wash. State Republican

Party,

as SG ash W.ae be ne —

Washington v. Davis,

se ga dk back ew ee ee 10

Whitcomb v. Chavis,

IS vs odes eke e ew eeeee 19, 20

White v. Regester,

te ean aie ls dhe glceas 20

White v. Weiser,

I gg a base Srl) hl ad 4 15

Whitford v. Gill,

218 F. Supp. 3d (W.D. Wis. 2016) ....... passim

Wittman v. Personhuballah,

I os ccm accovecsscees 15

Zelnik v. Fashion Inst. of Tech..,

464 F.3d 217 (2d Cir. 2006) .............0.- 24

CONSTITUTION

ee chee nes veeeeees passim

Sees I OIE © in nw cee cv ccec ccs passim

ee ns so so wde ances ss edipw aus 30

RULES

se whake f bine eke ee We Selku eo ews A 1

Vill

OTHER AUTHORITIES

Thomas L. Brunell,’ Redistricting and

Representation: Why Competitive Elections are

ee EE og ccc uweceeeesesees 19

James E. Campbell, Polarized: Making Sense of a

Divided America (2016) ................ 31, 32

Council of State Governments, The Legislators:

Number, Terms and Party Affiliations, 1937-

2003, in The Book of the States Volumes 2-35

sie caer eset ease he we een ean a 33

Thomas E. Mann & Bruce E. Cain, Party Lines:

Competition, Partisanship, and Congressional

rn eee os ke eh ae eas 32

Nolan McCarty, Keith T. Poole & Howard

Rosenthal, Does Gerrymandering

Cause Polarization?, 53 Am. J. of Pol. Sci. 666

ae eee en eet oe aot ae 31, 33, 34

Nolan McCarty, Keith T. Poole & Howard

Rosenthal, Polarized America: The Dance of

Ideology and Unequal Riches (2016) ...... 31, 32

1

Interest of the Amicus Curiae’

The Republican State Leadership Committee

(“RSLC”) is the Nation’s largest organization

representing Republican elected state officials. RSLC

is the parent organization of the Republican Legislative

Campaign Committee, the only national organization

exclusively dedicated to electing Republicans to state

legislatures. RSLC’s state-legislator members are key

stakeholders in the redistricting process in their

respective states. Other organizations within RSLC

include the Republican Lieutenant Governors

Association and the Republican Secretaries of State

Committee. Secretaries of State are the principal

election officials in most states. Accordingly, RSLC

members are, or have been, active participants in the

crafting of representational districts in their states.

RSLC submits this brief because affirming the decision

below would undermine state officials’ role in

redistricting and unravel this Court’s longstanding

tradition of reviewing redistricting only to enforce clear

legal standards, rather than freewheeling views cn

public policy, social science, and political philosophy.

‘ Pursuant to Rule 37.6, counsel for the amicus curiae certifies that

no counsel for any party authored this brief in whole or in part and

that no person or entity other than the amicus curiae or their

counsel made a monetary contribution intended to fund the brief’s

preparation or submission. Letters from the parties consenting to

the filing of amicus briefs in support of either or no party are filed

with the clerk.

2

Introduction and Summary of Argument

Virtually every federal-court redistricting decision

issued since this Court first announced the one-person,

one-vote standard confirms that “legislative

reapportionment is primarily a matter for legislative

consideration and determination,” Reynolds v. Sims,

377 U.S. 533, 586 (1964), and that the judiciary should

review redistricting only “with extraordinary caution,”

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

ask this Court to reject this time-honored approach of

caution and restraint and to revolutionize the

relationship between the federal courts and state

governments. A holding in their favor would politicize

the courts and would go far beyond intervention in the

“political thicket”; it would impale the judiciary on its

thorns.

RSLC opposes this request and Plaintiffs’ theories

of relief. It agrees with the State Defendants that

Plaintiffs’ various social-science standards are “the

opposite of limited and precise” and that their claim is

non-justiciable. State Br. at 23. Additionally, RSLC

believes Plaintiffs’ case has no basis in “well developed

and familiar” equal-protection and free-speech

standards that must provide the framework for judicial

review. Baker v. Carr, 369 U.S. 224, 227 (1962). The

concurring opinion in Vieth v. Jubelirer that left open

the possibility of a justiciable political-gerrymandering

cause of action identified a violation of these standards

as the sine qua non of any viable claim. 541 U.S. 267,

314 (2004) (Kennedy, J., concurring). Yet the district

* Colegrove v. Green, 328 U.S. 549, 556 (1946).

3

court’s test was not grounded in those standards, and

Plaintiffs have not satisfied them.

Justiciability concerns aside, no equal-protection,

free-speech, or free-association standards are violated

here, and they may never be violated in cases between

major political parties in a healthy two-party system.

That is first and foremost because “political

classifications” are not “unrelated to the [legitimate]

aims of apportionment” and are thus “permissible”

classifications. Jd. (emphasis added). The district

court’s creation of an “intent” element founded on

racial-discrimination doctrine ignored this crucial

distinction between racial classifications, which are

inherently suspect, and political ones, which are not. It

erroneously established a standard whereby the

Democratic and Republican Parties—which are

comprised of millions of members, obtain millions of

dollars in funding each year, and are fully capable of

protecting their interests in the political process—enjcy

the same standing in the equal-protection matrix as

“discrete and insular minorities,” United States v.

Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938), or

individuals with “an immutable characteristic which its

possessors are powerless to escape or set aside.”

Regents of Univ. of California v. Bakke, 438 U.S. 265,

360 (1978). Far from “familiar,” the district court’s

standard is unheard of.

Secondly, “political gerrymandering” of the genre

alleged here does not place a meaningful burden on any

fundamental right or liberty interest. The Court has

held that partisan intent does not invalidate a voting

restriction that does not otherwise place a severe

burden on the right to vote, Crawford v. Marion Cty.

4

Election Bd. , 553 U.S. 181, 203-04 (2008), and partisan

intent also does not itself amount to vote dilution,

Gaffney v. Cummings, 412 U.S. 735, 750 (1973). But,

apart from claims of partisanship, there is no

cognizable burden here because nothing stands

between any voter, candidate, or political party and the

state’s ballot. Nor is there cognizable vote dilution

because all votes are counted equally and all residents

are equally represented. Existing standards presume

neither that political parties are entitled to elect their

preferred candidates nor that the representatives

elected in each district will fail to represent the

interests of individuals who did not vote for them.

In concluding otherwise, the district court applied

a more lenient standard than exists for racial

minorities under the Voting Rights Act as set forth in

Thornburg v. Gingles, 478 U.S. 30 (1986). Under that

test, a minority group comprising approximately 50%

of the population and holding approximately 40% of the

seats would not have a viable claim of vote dilution,

especially where there is substantial crossover voting

each election. That a major political party has been

deemed to have greater rights to representation under

the Constitution than a racial minority has under a

civil-rights statute is nothing short of absurd.

Third, there is no cognizable burden on speech or

association because no speech is restrained and no

reasonable person would choose to forego speech or

association for fear of gerrymandering. Contrast Elrod

v. Burns, 427 U.S. 347, 357 (1976). There is also no

burden on association rights such as compelled

association, Cal. Democr’.tic Party v. Jones, 530 U.S.

567, 572—82 (2000), or non-association, Tashjian v.

5

Republican Party of Conn., 479 U.S. 208, 214-17

(1986). Plaintiffs are not claiming that government

regulation is restricting their speech, chilling their

speech, or regulating their internal affairs. They are

asserting a right for their candidates to be elected and

for government control. The First Amendment does not

confer that right.

In short, no “well developed and familiar” standard

supports Plaintiffs’ claims. Baker, 369 U.S. at 227.

Indeed, in the war between two well-matched foes like

the Republican and Democratic Parties, which are

more than capable of defending their interests in the

political process, it is doubtful that a violation of “well

developed and familiar” constitutional standards will

ever occur. If the Court chooses to leave open the

possibility of future political-gerrymandering claims, it

should at least make clear that this possibility is

reserved for a different political paradigm, such as one

involving the fencing out of a discrete and insular

minority party, or the seizure of complete control of

government power by one party, such that a vote for

the opposing party literally does not count. That is not

this case. Instead, this case should be viewed as

raising, if anything, questions under the Guarantee

Clause, which is the proper conceptual framework by

which to view arguments that the electoral process is

not sufficiently responsive to popular will.

Finally, even if the Court were inclined to innovate

in this area, the purported social harm to be remedied,

political polarization, has little to do with “partisan

gerrymandering.” Politics in the United States are

polarized and have been for decades for a variety of

reasons, and it is highly unlikely that partisan

6

redistricting contributes to this polarization. If it did,

one would expect the U.S. Senate to be less polarized

than the House of Representatives, and that is

manifestly not the case. Even if the Court views

gerrymandering as a “disease,” there is no cure

available from the judiciary, and the purported cure

posed here carries far graver consequences to the

redistricting process than judicial abstention.

Accordingly, Plaintiffs’ challenge should be rejected,

and the decision below should be reversed.

Argument

I. There Is No Cognizable Claim Here Under

Familiar and Well-Developed Constitutional

Standards

When this Court first waded into the “political

thicket,” it intended neither to usurp redistricting from

state control nor to expunge the typical political

concerns that play into that process, but rather to

correct actual inequality either involving an

impermissible classification or an undue burden on the

fundamental right to vote. That is evidenced in

virtually every federal redistricting case since 1964,

which all assert that redistricting is a political process

to be carried out by political actors in all but

extraordinary circumstances. Reynolds v. Sims, 377

U.S. 533, 586 (1964); Miller v. Johnson, 515 U.S. 900,

916 (1995); Chapman v. Meier, 420 U.S. 1, 27 (1975)

(“[Rleapportionment is primarily the duty and

responsibility of the State through its legislature or

other body, rather than of a federal court|.]”); Connor

v. Finch, 431 U.S. 407, 414-15 (1977) (“[A] state

legislature is the institution that is by far the best

7

situated to identify and then reconcile traditional state

policies within the constitutionally mandated

framework of substantial population equality[.]”);

Growe v. Emison, 507 U.S. 25, 34 (1993) (“Today we

renew our adherence to the principle[]...that the

Constitution leaves with the States primary

responsibility for apportionment of their federal

congressional and state legislative districts|.]”);

Voinovich v. Quilter, 507 U.S. 146, 156 (1993) (“Time

and again we have emphasized that reapportionment

is primarily the duty and responsibility of the State

through its legislature or other body, rather than of a

federal court.”) (quotation marks omitted); Easley v.

Cromartie, 532 U.S. 234, 242 (2001); Perry v. Perez, 565

U.S. 388, 392 (2012) (“Redistricting is primarily the

duty and responsibility of the State.”) (quotation marks

omitted); League of United Latin Am. Citizens v. Perry,

548 U.S. 399, 414-415 (2006) (*“LULAC”) (explaining

that the Constitution “leaves with the States primary

responsibility for the apportionment of their federal

congressional...districts”) (quotation marks omitted).

See also, e.g., Montes v. City of Yakima, No. 12-cv-3108,

2015 WL 11120964, *4 (E.D. Wa. Feb. 17, 2015);

Evenwel v. Perry, No. A-14-CV-335, 2014 WL 5780507,

*4n.5 (W.D. Tex. Nov. 5, 2014); Harris v. McCrory, No.

1:13-cv-949, 2014 WL 12600710, *2 (M.D.N.C. May 22,

2014); Ariz. State Legislature v. Ariz. Independent

Redistricting Comm'n, 997 F. Supp. 2d 1047, 1054 (D.

Ariz. 2014); Kostick v. Nago, 960 F. Supp. 2d 1074,

1102 n. 17 (D. Hawaii 2013); Essex v. Kobach, 874 F.

Supp. 2d 1069, 1075 (D. Kan. 2012); Corbett v.

Sullivan, 202 F. Supp. 2d 972, 981 (E.D. Mo. 2002);

Johnson v. Mortham, 926 F. Supp. 1460, 1504 (N.D.

Fla. 1996); NAACP v. Austin, 857 F. Supp. 560, 567

(E.D. Mich. 1994); Dye v. McKeithen, 856 F. Supp. 303,

8

313 (W.D. La. 1994); Gorin v. Karpan, 775 F. Supp.

1430, 1445 (D. Wyo. 1991); LaComb v. Growe, 541 F.

Supp. 160, 162 (D. Minn. 1982); O’Sullivan v. Brier,

540 F. Supp. 1200, 1202 (D. Kan. 1982); Terrazas v.

Clements, 537 F. Supp. 514, 527 (N.D. Tex. 1982);

Graves v. Barnes, 446 F. Supp. 560, 564 (W.D. Tex.

1977); Paige v. Gray, 437 F. Supp. 137, 163 (M.D. Ga.

1977).

Accordingly, the Court’s redistricting case law is

predicated on neutral rules of decision founded in “well

developed and familiar” equal-protection standards,

Baker v. Carr, 369 U.S. 224, 227 (1962), and the Court

has never claimed responsibility to enforce vague

notions of what is and is not compatible with

“democratic principles.” Ariz. State Legislature v. Ariz.

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658

(2015) (quotation marks omitted).

But there are no “well developed and familiar”

constitutional standards that would support a claim for

relief in this case or any case like it. Accordingly, in

Vieth v. Jubelirer, 541 U.S. 267, 271-306 (2004), four

Justices of this Court rejected on justiciability grounds

Fourteenth and First Amendment “partisan

gerrymandering” claims against Pennsylvania’s 2001

congressional plan. The Vieth plurality opinion speaks

for itself and is as compelling today as in 2004. It goes

without saying that Plaintiffs here have no claim under

that opinion.

Additionally, the concurring opinion of Justice

Kennedy, see Vieth, 541 U.S. at 306-17, does not

support relief in this case or even in this political

paradigm. Even while acknowledging the “weighty

arguments for holding cases like these to be

9

nonjusticiable” and conceding that “those arguments

may prevail in the long run,” 541 U.S. at 309, the

Kennedy opinion observed that “[iJt is not in our

tradition to foreclose the judicial process from the

attempt to define standards and remedies where it is

alleged that a constitutional right is burdened or

denied,” id. at 309-10, and that “the impossibility of

full analytical satisfaction is reason to err on the side

of caution,” id. at 311.

But this was a position of judicial restraint, not an

invitation for judicial activism. The concurring opinion

expressly identified a sufficient basis to dispose of the

case at hand “under the governing Fourteenth

Amendment standard”: because the challengers failed

to show a “burden” on “their representational rights,”

their allegation “that the legislature adopted political

classifications” stated “no constitutional flaw.” Jd. at

313. Thus, like Baker v. Carr, the Kennedy opinion

directs the analysis to “the more abstract standards

that guide analysis of all Fourteenth Amendment

claims,” and, because political classifications are not

inherently suspect, a plaintiff must identify “a

subsidiary standard” to “show how an otherwise

permissible classification, as applied, burdens

representational rights.” Jd. at 310, 313. Failing at

that, justiciability concerns aside, a plaintiff “states no

valid claim on which relief may be granted.” Jd. at 313.

See also LULAC, 548 U.S. at 418 (opinion of Kennedy,

J.) (“[A] successful claim attempting to identify

unconstitutional acts of partisan gerrymandering

must...: show a burden, as measured by a reliable

standard, on the complainants’ representational

rights.”).

10

The decision below did not apply the familiar

standards necessary to show a burden on

representational rights, and Plaintiffs cannot meet

them. The district court could only rule for Plaintiffs by

a sleight of hand in citing and summarizing literally

dozens of Equal Protection and First Amendment

precedents, while ignoring that none of those decisions,

nor the legal doctrines they developed, would support

a claim for relief. Whitford v. Gill, 218 F. Supp. 3d 837,

864-891 (W.D. Wis. 2016). As a result, its three-part

test is a cross-breed of half-articulated doctrines that

the district court applied only up until the point where

each given doctrine would refute Plaintiffs’ claim; on

reaching that point, the court selected a new doctrine

to continue the analysis. Whatever may be said for this

approach in terms of creativity, it has nothing to do

with familiar and well-developed standards.

A. No Familiar and Well-Developed Equal-

Protection Standard Has Been Violated

The court first relied on causes of action providing

relief against legislation passed with an impermissicLle

motive, such as Washington v. Davis, 426 U.S. 229, 240

(1976), and Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 265 (1977).

Whitford, 218 F. Supp. 3d at 884. But in citing these for

the generic proposition that “(t]he Supreme Court has

stressed the basic equal protection principle that

invidious quality of law must ultimately be traced to a

discriminatory purpose,” id., the court bypassed what

“invidious” means: a _ classification bearing no

“reasonable and just relation to the act in respect to

which the classification is proposed.” Gulf, C. & S. F.

Ry. Co. v. Ellis, 165 U.S. 150, 155 (1897). The court

11

neglected the other side of the equal-protection coin,

which is that if a state’s classification is not suspect, it

does not warrant heightened scrutiny, and federal

oversight is limited to rational-basis review. City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,

440 (1985).

The racial-classification standards therefore do not

apply to “political classifications,” because they are

“permissible.” Vieth, 541 U.S. at 314 (Kennedy, J.)

(emphasis added). The district court’s “intent” element

iguvred this distinction and thereby did not address the

“obstacles” that Justice Kennedys Vieth opinion

identified as requiring resolution. 541 U.S. at 306. For

instance, the court was obliged to “rest” its holding on

“something more than the conclusion that political

classifications were applied” and to identify how they

were applied in “an invidious manner or in a way

unrelated to any legitimate legislative objective.” Jd. at

307. That analysis does not appear in the decision

below, which instead assumed that racial-intent

standards “appl[y] with equal force to cases involving

political gerrymanders.” Whitford, 218 F. Supp. 3d at

884. That is simply not true.

Remarkably, the district court’s decision conceded

that this Court’s racial-gerrymandering intent

standard “does not speak directly to the political

gerrymandering case before us” because those cases,

such as Shaw v. Reno, 509 U.S. 630 (1993), and Miller

v. Johnson, 515 U.S. 900 (1995), involve “racial

stereotypes.” Whitford, 218 F. Supp. 3d at 887 n.171.

Yet the district court applied a lower intent standard

than applies in those cases, finding it sufficient for a

political-gerrymandering plaintiff to show “that the

12

intent to entrench the Republican Party in power was

‘a motivating factor in the decision.” Jd. at 887 (quoting

Arlington Heights, 429 U.S. at 265—66). In borrowing

the test from Arlington Heights, the Court ignored that

it also was a racial-discrimination case and, in fact,

supplied the doctrinal groundwork for the Shaw cases,

at least as far as intent is concerned. See Shaw, 509

U.S. at 643 (quoting Arlington Heights, 429 U.S. at

266); Miller, 515 U.S. at 913 (quoting Arlington

Heights, 429 U.S. at 266).

The only difference between the Shaw intent

standard and the Arlington Heights intent standard is

that the Shaw intent standard is more stringent,

“predominance,” where the Arlington Heights

framework shifts the burden to the state where race is

even a “motivating factor in the decision.” Arlington

Heights, 429 U.S. at 265-66. It is mystifying that the

court would reject the more demanding “predominance”

test, admitting that “the [Supreme] Court has rejected”

it “in the context of political gerrymandering claims,”

Whitford, 218 F. Supp. 3d at 887 n.171, only to apply

the more lenient standard of Arlington Heights. If the

higher predominance standard has been rejected (it

has), then a lower standard cannot be its substitute.

Because the district court did not identify an

inherently suspect classification, it should have

examined the plan under the highly deferential

rational-basis standard typically applied to non-suspect

classifications. See City of Cleburne, 473 U.S. at 440.

Members of a major political party do not bear an

immutable characteristic, they are not a discrete and

insular minority, they do not have a history of unequal

treatment, and they are well-represented in the

13

legislative process—even when they do not constitute

a majority. See id. Members or supporters of a major

political party cannot seriously expect, as a class, to

receive enhanced scrutiny where discrimination claims

by the mentally disabled and elderly fall under

rational-basis review. Mass. Bd. of Ret. v. Murgia, 427

U.S. 307, 313-14 (1976); City of Cleburne, 473 U.S. at

440.

The rational-basis standard is met “if there is any

reasonably conceivable state of facts that could provide

a rational basis for the classification.” F.C.C. v. Beach

Comme’ns, Inc. , 508 U.S. 307, 313 (1993). “Perfection in

making the necessary classifications is neither possible

nor necessary.” Mass. Bd. of Ret., 427 U.S. at 314. But

that is not the standard the district court applied. In

assessing whether the plan was “justified,” the district

court assumed that political considerations were

illegitimate and assessed only whether other

“legitimate state concerns” explained the partisan

results. See Whitford, 218 F. Supp. 3d at 910-12.

Because rational-basis review proceeds from the

opposite presumption, that the state’s criteria are

legitimate until proven otherwise, the court should

have assumed that the legislature’s political

classifications were legitimate as well. It should have

required Plaintiffs to show that there is no “reasonably

conceivable state of facts that could provide a rationa!

basis for the classification.” Beach Commcen’s, 508 U.S.

at 313.

But the basis for the use of partisan classifications

and political data is rational and supported by this

Court’s precedent. Because it is “absolutely

unavoidable” that “the location and shape of districts

14

may well determine the political complexion of the

area,” state legislatures have very little choice other

than to consider political data. Gaffney, 412 U.S. at

753. Legislative bodies use election data for many

reasons other than simple partisan advance.

Legislators are necessarily tasked with allocating the

benefits and burdens of reapportionment on competing

political interests, and a “politically mindless approach

may produce, whether intended or not, the most grossly

gerrymandered results.” Jd. As the Court observed in

Gaffney:

[djistrict lines are rarely neutral phenomena.

They can well determine what district will be

predominantly Democratic or predominantly

Republican, or make a close race likely.

Redistricting may pit incumbents against one

another or make very difficult the election of the

most experienced legislator. The reality is that

districting inevitably has and is intended to

have substantial political consequences.

Id. Political data provide an effective proxy for

identifying those interests, given that voting patterns

tend to correspond with societal similarities and

differences, thereby allowing redistricting to respect

and preserve communities of interest. Moreover,

partisan advance itself is a legitimate criterion insofar

as political classifications may be used to obtain the

political support for mecessary passage of a

redistricting plan. Rational-basis review requires no

further scrutiny than this.

Furthermore, the legislative process of protecting

incumbents, both by avoiding pairing incumbents and

by preserving their core constituencies, may “preserve||

15

the seniority the members of the State’s [congressional|

delegation have achieved in the United States House of

Representatives,” White v. Weiser, 412 U.S. 783, 792

(1973), or the experience of state legislators whose

incumbency serves institutional interests. This allows

the representative body, whose members have personal!

knowledge of the effectiveness of other members, to

have a say in its composition, thereby providing an

added check in the complex system of republican

government.

The Court saw an example of how “political

blindness” can adversely affect voters in Wittman v.

Personhuballah, 136 S. Ct. 1732 (2016). In that

litigation, the 2012 Virginia Congressional

reapportionment plan was enjoined in district court on

racial-gerrymandering grounds, and while the appeal

was pending before this Court, the district court

appointed a special master to draw a new plan. Jd. at

1735-36. That plan, which ignored political

considerations, drew incumbent member Randy Forbes

out of Congressional! District 4, which included Norfolk

and Hampton Roads. Notwithstanding his effort to run

under the newly constructed district, Mr. Forbes was

not reelected, thereby eliminating this senior member,

and presumed future chair of the House Armed

Services Committee, from the Virginia delegation. The

result of this non-partisan, politically blind cartography

seems unlikely to have advanced the interests of

residents in what is among the most military-

dependent congressional] districts in the Nation.

16

B. No Familiar and Well-Developed

Fundamental-Right or Liberty-Interest

Standard Has Been Violated

The district court also relied on cases addressing

partisan intent in the one-person, one-vote context,

Whitford, 218 F. Supp. 3d at 885 (citing Harris v. Ariz.

Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1310

(2016)), and in the context of the Anderson / Burdick

framework for adjudicating alleged burdens on voting

rights. See Anderson v. Celebrezze, 460 U.S. 780 (1983);

Burdick v. Takushi, 504 U.S. 428 (1992). These

doctrines, which provide judicial review for alleged

burdens on the fundamental right to vote, defeat

Plaintiffs’ claims because they hold that partisan intent

does not amount to a burden on the right to vote.

Under these principles, Plaintiffs were required to

show a burden independent from partisan intent, and

they have not.

In discussing the Anderson / Burdick framework, the

district court ignored Crawford v. Marion County

Election Bd., 553 U.S. 181, 203—04 (2008), which held

that, if a voting restriction or qualification is otherwise

justified, partisan intent does not invalidate the state’s

“valid neutral justifications” for the voting

requirement. To be sure, Crawford stated that partisan

intent cannot justify a voting requirement if that

requirement places an otherwise unjustified burden on

the right to vote. Jd. But this means only that

partisanship is a nullity: it neither saves an otherwise

impermissible burden on the right to vote nor

establishes an independent basis for striking down a

law. Id.

17

That also appears to be the rule under the one-

person, one-vote framework. The district court cited the

one-person-one-vote cases for the underwhelming

proposition that “the constitutionality of partisan

favoritism in redistricting is an open question,”

Whitford, 218 F. Supp. 3d at 885, but that is not

accurate. The Court’s decisions in Harris v. Ariz. Indep.

Redistricting Comm’n and Gaffney v. Cummings and

its summary affirmance of Larios v. Cox, 300 F. Supp.

2d 1320 (N.D. Ga. 2004), see Cox v. Larios, 542 U.S. 947

(2004), addressed whether partisan favoritism can

justify inequality of population in voting districts, not

whether partisan favoritism amounts to a basis

independent of population inequality to invalidate a

plan. In fact, the Court in Harris went so far as to warn

potential challengers that “we believe attacks on

deviations under 10%,” the presumptive threshold for

when deviations from equality become de minimis,

“will succeed only rarely, in unusual cases.” 136 S. Ct.

at 1307. That is hardly a compelling basis to conclude

that one out of every three legislative maps over the

past 45 years is unconstitutionally partisan. See State

Br. at 3, 24, 58.

Thus, under either set of equal-protection principles,

the crux of any claim is not an alleged partisan intent,

but rather the degree of burden, if any, on the right to

vote. See Vieth, 541 U.S. at 314 (Kennedy, J.,

concurring) (observing that a plaintiff must show a plan

“burdens representational rights”); LULAC, 548 US. at

418 (opinion of Kennedy, J.) (sam: \. Here, there is no

burden on the right to vote and no vote dilution that

resembles what the Court has previously recognized as

actionable. The purported “discriminatory effect” the

district court identified was that “the number of

18

Republican seats would not drop below 50%” under the

challenged plan, Whitford, 218 F. Supp. 3d at 898, and

that the legislature accomplished this by “cracking” and

“packing” perceived Democratic voters resulting in more

“wasted” votes for the Democratic Party than for the

Republican Party, id. at 903—04.

That is not similar to the burdens on the right to

vote at issue under the Anderson / Burdick line of cases,

which involve barriers to participation in the voting

process, such as restrictions on ballot access for

political parties and candidates, Anderson, 460 U.S. at

787, bars on write-in voting, Burdick, 504 U.S. at

434—35, and voter qualifications that may limit access

to the polls, Crawford, 553 U.S. at 211—18. Unlike in

those cases, Wisconsin’s redistricting plan places no

obstacle between a voter and a polling place or a

political party or candidate and a ballot. Here, there is

no burden on the right to vote, much less a “severe” one

requiring state justification. Burdick, 504 U.S. at 434.

Likewise, the “discriminatory effect” identified here

is not analogous to the vote dilution present in the

Court’s one-person, one-vote cases. Those decisions

prohibit “[wJeighting the votes of citizens differently.”

Reynolds v. Sims, 377 U.S. 533, 563 (1964). But, in this

case, all districts have approximately equal population,

and residents have approximately equal representation

in the legislature.

The difference between this case and both the

voting-restriction and vote-dilution cases is not merely

technical, but rather goes to fundamental differences as

to the theories’ respective “model(s] of fair and effective

representation.” Vieth, 541 U.S. at 307 (Kennedy, J.,

concurring). This Court’s familiar and well-established

19

standards seek to protect the right to participation in

the electoral process, through fair and congruent voting

requirements and relative equality of representation,

as measured by the number of representatives assigned

to a given number of residents. The district court’s

“wasted vote” theory is not predicated on participation,

but on partisan success: it proposes that a voter who is

allowed to vote and has equal representation on a

representative-to-resident basis nevertheless

experiences an injury to his or her representational

rights if his or her vote is “cast for losing candidates” or

is “cast for winning candidates in excess of 50% plus

one.” Whitford, 218 F. Supp. 3d at 903 n.274. In other

words, a voter’s participation is only meaningful, and

representation is only secured, if that voter’s vote was

for a winning candidate and was essential to that

candidate’s victory. But this theory ignores the usual

assumption that a representative for whom the

individual voter did not vote nevertheless will

represent that voter’s interest. See Davis v. Bandemer,

478 U.S. 109, 132 (1986); Whitcomb v. Chavis, 403 U.S.

124, 149-153 (1971). It also ignores the legitimate

reasons why a state, or its voters, may prefer districts

with much higher numbers of voters who support a

common candidate than are needed to put that

candidate in office, given that “the closer the

representative is to the voter ideologically, the more

satisfied is the voter.” Thomas L. Brunell, Redistricting

and Representation: Why Competitive Elections are

Bad for America 30 (2008); see also id. at 11 (“Voters

are more satisfied” in non-competitive districts

“because they are better represented” where the

representative “receives clear, noncontradictory signals

from his district as to how to vote on the issues of the

day”). Most fundamentally, it ignores that there may be

20

other considerations for creating districts than where

specific partisan votes would have maximum “effect.”

Whitford, 218 F. Supp. 3d at 903 n.274.

Whatever may be said for the district court’s

political theory, the view that a political party’s ability

to elect its preferred candidates is the equivalent of

constitutionally protected participatory rights is

completely novel. It bears no support in familiar

standards, and the Court should think twice before

constitutionalizing it—or any similar standard. See

Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes,

J., dissenting) (“The 14th Amendment does not enact

Mr. Herbert Spencer’s Social Statics.”).

Indeed, there is only one context where the Court

has been willing to equate a group’s failure “to elect

candidates of [its] choice” with its “opportunity to

participate in the political process,” and that is under

Section 2 of the Voting Rights Act. That cause of action

differs from this one in that (1) it is based on a statute,

not in the federal constitution, and (2) depends yet

again on the existence of a group with an immutable

characteristic: race or color. Thornburg v. Gingles, 478

U.S. 30, 48—80 (1986). It would, of course, be untenable

for Plaintiffs to invoke this standard where these

elements are not met.®

* The Court has applied a different standard in assessing

constitutional claims by racial minorities for vote-dilution. See,

e.g., White v. Regester, 412 U.S. 755, 769 (1973); Whitcomb, 403

U.S. at 149. But this standard turns on a showing of racial

discrimination, and is inapplicable for the reasons stated above,

Section I.A. The Gingles factors provide the only standard that has

been successfully applied to identify vote dilution absent the

finding that a state intentionally utilized a suspect classification.

21

But, setting that aside, it is telling that Plaintiffs’

purported vote-dilution claim would fail the Gingles

standard. Gingles requires a showing that “a bloc

voting majority must usually be able to defeat

candidates supported by a politically cohesive,

geographically insular minority group.” 478 U.S. at

48—49. Plaintiffs would be unable to claim that their

candidates are usually defeated at the polls when they

control approximately 40% of the legislature. Whitford,

218 F. Supp. 3d at 902. Plaintiffs’ Section 2 claim

would also fail for lack of a “politically cohesive unit.”

Gingles, 478 U.S. at 56. The group they claim has been

disproportionally burdened is comprised of anyone who

has cast a vote for Democratic candidates in recent

memory, but membership in and support for the

Democratic Party (and the Republican Party) is fluid.

For the same reason, Plaintiffs would be unable to

show polarized voting. Gingles, 478 U.S. at 52. In their

own telling, Wisconsin is a “closely divided swing state”

whose voters “backed the Democratic candidate for

President in 2012 and the Republican candidate in

2016.” Motion to Affirm at 1. Clearly, Democratic and

Republican voters cross party lines regularly in given

elections, and there is no doubt a healthy contingency

of independent voters who will back the candidates of

either party depending on those candidates’ respective

merits. Additionally, Plaintiffs’ “wasted vote” theory

does not turn on whether such a community is

“geographically compact,” Gingles, 478 U.S. at 50, and

would allow—indeed, it may often require—states to

draw bizarre districts.

Thus, Plaintiffs’ claims fail the most generous vote-

dilution standard ever applied in a federal court (until

the decision below), and the only legal standard in

22

existence (until the decision below) where failure to

elect a preferred candidate has been equated with a

burden on participation, independent of an inherently

suspect classification. That supporters of the

Democratic Party are asking this Court to afford the

Party more lenient vote-dilution standard than exists

for racial minorities demonstrates just how far afield

Plaintiffs’ case is from “familiar” standards.

It also demonstrates just how disruptive a holding

in their favor is likely to be. Will racial minorities begin

bringing claims under the more favorable “wasted vote”

theory rather than Section 2 claims? How will that

standard apply in the various other contexts where

challengers will no doubt be eager to use it? What will

happen when the dictates of Section 2 and the

Plaintiffs’ wasted-vote theory come into conflict

because, say, a state’s effort to preserve partisan vote

efficiency results in splitting a cohesive minority

community? Will the constitutional “wasted vote” rule

trump the statutory Section 2 framework? And is this

all not really a disguised right to proportional

representation? Compare Whitford, 218 F. Supp. 3d at

904 (“[T]he EG can be viewed as 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[.]”) with

Bandemer, 478 U.S. at 132 (rejecting constitutional

right of proportional representation). There is nothing

“familiar” or “well developed” in this brave new world.

23

C. No Familiar and Well-Developed First

Amendment Standard Has Been Violated

The district court also purported to rely on cases

concerning deprivation of First Amendment rights. See

Whitford, 218 F. Supp. 3d at 884 (citing, inter alia,

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). The district

court correctly observed that “discriminatory intent

also factors into a First Amendment analysis,” id., but

it ignored all the other factors that analysis

entails—including the required showing of a restraint,

or its equivalent, on speech.

First Amendment standards condemn classification

on grounds of expression or association only to “the

extent [they] compel{] or restrain[{] belief and

association....” Elrod v. Burns, 427 U.S. 347, 357

(1976); see also Vieth, 541 U.S. at 314—15 (Kennedy, J.)

(“The [First Amendment] inquiry...is whether political

classifications were used to burden a_ group’s

representational rights.”). That is, the First

Amendment condemns “restraints” on expressive and

associational rights, e.g., Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 70 (1963), and more subversive

forms of retaliation that “would deter a person of

ordinary firmness from exercising his First

Amendment rights,” see, e.g., Bridges v. Gilbert, 557

F.3d 541, 552 (7th Cir. 2009). For political parties, this

involves a threshold showing of a burden on

associational rights, such as compelled association, Cai.

Democratic Party v. Jones, 530 U.S. 567, 573 (2000), or

non-association, Tashjian v. Republican Party of Conn.,

479 U.S. 208, 214-17 (1986).

24

Nothing like that is present here. There is no

serious contention that Wisconsin has placed any

restraint on the speech of the Democratic Party or its

members or supporters. No speech or association is

even “arguably prohibited.” Babbitt v. United Farm

Workers Nat'l Union, 442 U.S. 289, 303 (1979).

Nor would a person of “ordinary firmness” be

deterred from engaging in political speech or

association out of fear that the Wisconsin legislature

would retaliate by means of a political gerrymander.

“Political gerrymanders are not new to the American

scene,” Vieth, 541 U.S. at 274 (Plurality Op.), so if they

had a deterrent effect on speech or association,

someone would have noticed that by now. Political

gerrymandering is not similar to a “prolonged and

organized campaign of harassment” by law

enforcement officers, see, e.g., Bennett v. Hendrix, 423

F.3d 1247, 1254 (11th Cir. 2005), police “intimidation

tactics,” see, e.g., Keenan v. Tejeda, 290 F.3d 252, 259

(5th Cir. 2002), criminal prosecution, see Bruner uv.

Baker, 506 F.3d 1021, 1030 (10th Cir. 2007), or adverse

employment action, see, e.g., Hill v. City of Pine Bluff,

Ark., 696 F.3d 709, 715 (8th Cir. 2012). The target of

these deprivations knows when they occur and has

good reason to fear them. The effect, if any, of political

gerrymandering is de minimis and does not arise to the

level of a First Amendment deprivation. See Zelnik v.

Fashion Inst. of Tech. , 464 F.3d 217, 227 (2d Cir. 2006)

(finding no deprivation of First Amendment rights

where university professor was denied “emeritus”

status because the “benefits of such status...carry little

or no value and their deprivation therefore may be

classified as de minimis”); Mezibov v. Allen, 411 F.3d

712, 721-23 (6th Cir. 2005) (finding no First

25

Amendment deprivation where allegedly defamatory

statements by prosecutor would not deter a “defense

attorney of ordinary firmness” from continuing to

defend his client).

Likewise, this case involves no burden on

associational rights in the form of regulation on

“parties internal processes.” Jones, 530 U.S. at 573.

The Wisconsin redistricting scheme has no effect on

“the ability of citizens to band together in promoting

among the electorate candidates who espouse their

political views.” Id. at 574. There is neither forced

association of any party with individuals or candidates

with whom the party would prefer not to associate, id.

at 577, nor prevented association of any party with

individuals or candidates with whom the party wishes

to associate, Tashjian, 479 U.S. at 214.

In relying on these precedents, the district court

ignored that this Court has denied relief where no such

burden on association is present, including where a

primary ballot contained no party information, did not

“choose parties’ nominees,” and therefore did not affect

the process by which “parties inay...nominate

candidates.” Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 453 (2008). There

being no impact on the internal affairs of private

organizations, no First Amendment burden was

imposed.‘ Similarly, the Court denied relief in a

* The Court left open the possibility that, on an as-applied basis,

the non-partisan primary system may confuse voters into believing

that the primary winners werc the party-endorsed candidates.

Wash. State Grange, 552 U.S. at 454. But that sort of confusion

also has no analogue here.

26

challenge to a closed-caucus system where plaintiffs

were not political parties, but potential candidates

asserting the right to be endorsed by political parties;

the Court observed “[njone of our cases establishes an

individual’s constitutional right to have a ‘fair shot’ at

winning the party’s nomination.” N.Y. State Bd. of

Elections v. Lopez Torres, 552 U.S. 196, 205—06 (2008).

Indeed, “[wJhat constitutes a ‘fair shot” is “hardly a

manageable constitutional question for judges,”

especially where “traditional electoral practice gives no

hint of even the existence, much less the content, of a

constitutional requirement for a ‘fair shot’ at party

nomination.” Id. at 206.

So too here, Plaintiffs are claiming a right that does

not exist, under standards that are not remotely

manageable, for an alleged harm that does not in any

way impact the internal affairs of any political party.

They are not claiming the right to associate with like-

minded individuals for the purpose of espousing shared

views, but the right to control the government by

electing their preferred candidates. That right finds no

basis in familiar First Amendment standards, much

less manageable ones.

D. Familiar and Well-Developed Standards Do

Not Support Relief for Alleged Political-

Gerrymandering Claims in the Current

Political Paradigm

Plaintiffs’ failure to meet any “well developed and

familiar” constitutional standard, Baker, 369 U.S. at

227, is not a matter of mere legal formalism.

Constitutional standards exist to provide a neutral

method of distinguishing cases that merit judicial

intervention from societal challenges best resolved by

27

other means. See City of Cleburne, 473 U.S. at 442—43.

Overexpansion and abstraction of these principles

results in judicial overreach into matters that should

be left to the political branches of government or other

means of resolution. Courts do not exist to take

political decisions from political actors—or to throw in

with one side or the other in big-money politics. They

exist to enforce legal standards.

The fundamental problem with Plaintiffs’ case is

that partisan “gerrymandering” of the degree alleged

here neither amounts to inequality, nor a restraint on

expression or association, nor a burden on the right to

vote. First and Fourteenth Amendment standards—at

least bearing any resemblance to those neutral

standards typically employed—will not be met in a

situation anything like the current political paradigm,

with two major parties with millions of members and

millions of dollars in funding and which are capable of

defending their interests in the trenches of day-to-day

political tug-of-war. The First and Fourteenth

Amendments were not ratified to empower the

judiciary to take sides in political jostle between such

well-matched foes.

In this regard, the Court’s initial instinct in

addressing alleged partisan gerrymandering, expressed

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

plurality, was to limit the judiciary’s role in political-

gerrymandering cases to correcting cognizable

representational burdens and otherwise to avoid

“embroil [ing] the judiciary in second-guessing what has

consistently been referred to as a political task for the

legislature.” Jd. at 133. The Court, for instance,

imposed a presumption that voters “for a losing

28

candidate lare] usually deemed to be adequately

represented by the winning candidate and to have as

much opportunity to influence that candidate as other

voters in the district”; it therefore declined to assume,

“without actual proof to the contrary, the candidate

elected” from a given district “will entirely ignore the

interests” of voters who did not vote for him. Jd. at 132.

The Court also required political-gerrymandering

plaintiffs to show much more than that “an

apportionment scheme...makes winning elections more

difficult”; it also required a plaintiff to show a denial of

a “chance to influence the political process.” Jd. at 133;

see also Gaffney, 412 U.S. at 754 (stating that

constitutional standards would be violated if “political

groups have been fenced out of the political process”).

Accordingly, Bandemer rejected a claim based on

election numbers mirroring those at issue here:

Republican candidates won 57 percent of the seats with

48 percent of the vote. Bandemer, 478 U.S. at 134—35.

In the 18 years after Bandemer, the federal

judiciary rejected relief under this standard in a long

line of cases. See Vieth, 541 U.S. at 179-80 & n.6

(Plurality Op.). The Vieth plurality viewed this

evidence as “lelighteen years of judicial effort with

virtually nothing to show for it.” Jd. at 281. But these

decisions could also be viewed as showing that the

Bandemer standard was correctly construed in a strict

and narrow fashion to avoid judicial intervention in

run-of-the-mill politics between the Democratic and

29

Republican Parties, which do not need judicial help to

maintain their status in American society and politics.°

Even if the Court decides to leave open the

possibility of future political-gerrymandering claims, it

should not allow the courts to become politicized for the

benefit of major parties. Instead, it should make clear

that the courthouse doors are only open for another day

and another paradigm. One might imagine, for

instance, the emergence of one or more “discrete and

insular” minority groups, United States v. Carolene

Prods. Co., 304 U.S. 144, 153 n.4 (1938), deprived of

any representation for an elongated period. Such a

group may be able to show that its lack of

representation amounts to a bar on_ political

participation, both because the redistricting scheme

prevents any representation and because the

representatives elected by others are hostile to the

group’s interests. One might also imagine a scenario

involving a party that, through advanced technology

and data, managed to divide the populace so

thoroughly and precisely as to obtain complete or near

complete control of the government. That standard

would not be met where a party with 48% of the vote

obtained 65% of the seats, but rather where it obtained

100% or, perhaps, 96% of the seats. In that instance,

the other party would be “fenced out” of participation,

° To be clear, RSLC agrees with the State Defendants that the

Bandemer test is no longer in force and does not advocate reviving

it. RSLC observes, however, that, if the Court declines to find all

political-gerrymandering claims non-justiciable, it should impose

a standard at least as, if not more, rigorous than the Bandemer

standard. The district court’s application of a less stringent

standard was inexplicable.

30

Gaffney, 412 U.S. at 754, not merely placed in the

minority.

Whether that would ever occur and the precise

contours of relief are a matter of speculation and need

not be resolved in this case. But it is towards this

question—under what different scenario a political

gerrymandering claim may arise—that any continued

open door for relief should be oriented. The Court

should not encourage, as Plaintiffs here and in other

cases appear to believe it has, a race to identify a magic

social-science technique whereby alleged gerrymanders

of the degree and kind already held to be non-

actionable are somehow rendered actionable. The Court

should not incentivize a race to see which major Party

can first arrive at a “manageable” political-science

standard that favors its interests, thereby baking a

partisan tilt into the U.S. constitution and warping the

judicial process into a political one.

What’s more, the social-science techniques Plaintiffs

have utilized here, and those that are foreseeable in

future cases if the Court incentivizes further

innovation, address, not equal-protection and free-

speech concerns, but the constitutional “guarantee” to

a “Republican Form of Government.” U.S. Const.

art. IV § 4. At base, Plaintiffs are alleging that one

political party has the right to translate votes for its

candidates into seats as easily as another. As already

stated, this has little if anything to do with First or

Fourteenth Amendment standards, but rather seeks to

impose “standards for fairness for a representative

system,” which is the province of the Guarantee

Clause. Colegrove v. Green, 328 U.S. 549, 553 (1946).

While in “most of the cases” addressing Guarantee

31

Clause claims this Court “has found the claims

presented to be nonjusticiable,” New York v. United

States, 505 U.S. 144, 184 (1992), plaintiffs should not

be allowed to circumvent the problems raised under

that Clause merely by re-styling a Guarantee Clause

claim as an equal-protection or free-speech claim. If a

bird quacks like a duck and waddles like a duck, it’s a

duck, and if a claim alleges that a system of

government is not “accountable to the local electorate,”

id. at 186, it’s a Guarantee Clause claim.

II. Departure from Familiar and Well-Developed

Standards Is Not Warranted Because the

Alleged Harms of Gerrymandering Are Not

Substantiated

For reasons stated above, the district court’s

decision is not defensible under “familiar and well

developed” constitutional standards. But, even if the

Court were willing to innovate new standards, there

would be no public-policy purpose in doing so, because

the purported policy basis for restricting

gerrymandering—that gerrymandered districts

produce polarized government—is unfounded.

The Court should not be fooled by a canard common

to partisan-redistricting rhetoric: apportionment plans,

even if they are gerrymandered for political reasons, do

not cause political polarization. Though “elegant in

description and prescription,” this theory has been

debunked. Nolan McCarty, Keith T. Poole & Howard

Rosenthal, Does Gerrymandering Cause Polarization?,

53 Am. J. of Pol. Sci. 666, 667 (2009); see also, James E.

Campbell, Polarized: Making Sense of a Divided

America (2016); Nolan McCarty, Keith T. Poole &

Howard Rosenthal, Polarized America: The Dance of

32

Ideology and Unequal Riches (2016); Thomas E. Mann

& Bruce E. Cain, Party Lines: Competition,

Partisanship, and Congressional Redistricting (2005).

A powerful illustration of this theory’s failure is that it

does not account for the increased polarization of the

United States Senate or among partisans in the

electorate. McCarty, supra, at 61-62 (“The strongest

argument against overemphasizing the politics of

apportionment is the fact that the U.S. Senate (which

of course is never redistricted) has endured an almost

identical history of polarization.”).

Simply put, other things—a lot of other things—are

at play. Campbell, supra, at 147 (“Party polarization is

a much broader phenomenon than gerrymandered

redistricting could possibly explain.”). First, “[tj/he

evidence indicates that Americans are highly polarized,

that they have been so since the late 1960s, and that

they have become significantly more so in recent

decades,” and, in fact, the “increased polarization of the

parties in government lagged behind the greater

polarization in the public.” Campbell, supra, at 222.

Second, “|pjarty polarization in Congress and many

state legislatures has been on the rise since the 1980s,

and it has reached levels comparable to those in the

late nineteenth and early twentieth centuries. No

serious academic analyses attribute that polarization

solely or even primarily to redistricting. There are

many other plausible causes...." Mann, supra, at 20.

A host of other geographic and historic shifts have

been found to generate political polarization in the

United States. These include the demise of the one-

party South, increased geographical self-sorting on

political and social attitudes, differences in how

33

Republican and Democratic legislative members would

represent the same district, and resulting shifts in

legislative agendas, strategies of party leadership, and

ideological and organizational orientations. McCarty,

supra, at 678—79. Political scientists have run the

numbers, and they do not support the notion that

partisan redistricting causes political polarization.

Plaintiffs claim redistricting has stripped Wisconsin

politics of competition and created an “exceptionally

large and durable” advantage for Republicans and that

this “sharp decline in the number of competitive seats

demonstrates that Act 43 was intended to give

Republicans a durable” advantage. Mot. to Affirm at 1,

8 (emphasis added). But a decline in the number of

competitive seats cannot be blamed on

reapportionment, let alone demonstrate the direct

intent of any map drawer. Besides, predictions of

durability are not always correct. For example, the

supposed permanent majority of the Indiana plan

adjudicated in Bandemer did not turn out to be

permanent because, by the end of the decade,

Democrats took a majority of the House and only failed

to take a majority of the Senate by two seats. See

Council of State Governments, The Legislators:

Number, Terms and Party Affiliations, 1937-2003, in

The Book of the States Volumes 2-35 (2004); see also

Vieth, 541 U.S. at 287 n.8 (describing how, five days

after court held judicial system to be unconstitutionally

partisan, all the supposedly favored judicial candidates

were defeated).

In fact, a gerrymandered plan does not necessarily

generate safe seats for the party that drew it because

maximizing that party’s voting strength typically

34

requires spreading its perceived supporters as thin as

possible across districts. That strategy can backfire. In

an effort to maximize the number of seats it will win in

future elections, a party in charge of redistricting will

often choose to create as many districts as possible

where those voters it perceives to be its supporters

constitute the majority and to “pack” the perceived

supporters of the minority party into as few districts as

possible. But this process can lead to more electoral

security for the minority party than for the majority

party because members of the majority party are

spread thin and may fail to elect their preferred

candidates, whereas representation for members of the

minority party is secured. See McCarty, supra, at 667

(discussing the “dummymander” which describes

“those situations when the majority spreads its voters

so thin that it actually loses seats”). Whether or not the

majority party is successful in “entrenching” its power,

the minority party is guaranteed to have an embedded

voice in the government. Federal courts should not

assume that this voice counts for nothing.

In other words, the effects of partisan motives in

redistricting are as complicated and unpredictable as

the redistricting process itself, and the Court should

not enmesh itself in the process based on a simplistic

notion that there is some readily identifiable “harm” to

the democratic process that is easy to remedy. Instead,

the federal courts should become involved in

redistricting only to exercise their competency in

enforcing “familiar” constitutional and statutory

standards.

35

Conclusion

For these reasons, and those stated in the State

Defendants’ briefing, the Court should reverse the

decision below.

Respectfully submitted,

Efrem M. Braden

Counsel of Record

Katherine L. McKnight

Richard B. Raile

Baker & Hostetler LLP

1050 Connecticut Avenue NW, Suite 1100

Washington, DC 20036

(202) 861-1504

mbraden@bakerlaw.com

kmcknight@bakerlaw.com

rraile@bakerlaw.com

Matthew Raymer

Vice President and Genera! Counsel

Republican State Leadership Committee

1201 F Street, NW, Suite 675

Washington, DC 20004

(202) 448-5160

mraymer@rslc.gop

Counsel for Amicus Curiae