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

No. 16-1161 i

jn The

BEVERLY R. GILL, ET AL.,

Appellants,

Vv.

WILLIAM WHITFORD, ET AL.,

Appellees.

a

On Appeal from the United States District Court

for the Western District of Wisconsin

——

BRIEF OF AMICI CURIAE

TENNESSEE STATE SENATORS

IN SUPPORT OF APPELLANTS

John L. Ryder

Counsel of Record

Pablo Adrian Varela

Harris Shelton Hanover Waish, PLLC

40 South Main Street, Suite 2700

Memphis, Tennessee 38103

901.545.1455

jryder@harrisshelton.com

Linda Carver Whitiow Knight

Gullett Sanford Robinson & Martin, PLLC

150 Third Avenue South, Suite 1700

Nashville, TN 37201

615.244.4994

Iknivht@ygsrm.com

Counsel for Amici Curiae Dated: August 3, 2017

———————

i ANTACNE | ECA PRINTING

8

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES... .......:.22:eeeseeeee ree ceens iv

INTERESTS OF THE AMICI CURIAE............055- l

SUMMARY OF ARGUMENT..........:-:.::2:20e essere ee 3

ARGUMENT........-:::cecececererececeeeenassesseneeaecsee seen 5

I. Colonial America through the Founding..... 5

II. Gerrymander and the Constitution............ 9

A. The Constitutional Convention........-. 9

B. The State Ratifying Conventions...... 12

Ill. The Early Republic to 1842.......-....::.0 16

A. Early State Approaches to

Gerrymandering............s0:ssessseeeeee 16

1. Gerrymandering in the

2 States that Took Steps to Avoid

Gerrymandering..........0066..00 19

3. Later Effects of State

Gerrymandering.........0:.s02see 20

il

IV. Congressional and State Reapportionment

6a irchaduunscsdenkdecieindid dindaveuntensn 22

A. Congressional Oversight of

COOTER soi nes cncccn cas ccccvccescess 22

B. Legislation in the States.................. 24

C. Later Congressional Action.............. 25

Fs UID csicnaidie i ie ain Seknadiilenguvatecesbiie 30

VI. Fruitless Search for Manageable

Nhs Wid kdicncersbuvngabinadeens sivieuesecuien 33

Fe ini: nestiihinngia dociieaadwusseindernn 39

CONCLUSION........ ; Vabnsedianheelepspaipheatdlecmunineat 41

1V

TABLE OF AUTHORITIES

Cases Page(s)

Anderson v. Jordan,

ee he 32

Baker v. Carr,

sae Ii snes ck cccsate-oicodadignnaoans passim

Colegrove v. Green,

a IIE, 0c cts vies duknes uceheteobenans 29, 32

Crone v. Darnell

176 F. Supp. 2¢ 514 (W.D. Tenn.

ia a 2

Davis v. Bandemer.

og oe oe ee passim

Evenwel v. Abbott,

Se a eo 39

Kidd v. McCandless,

292 S.W.2d 40 (Tenn. 1956)..................... an, ae

Kidd v. McCandless,

no se cu dubte 31, 32

Kopatld v. Carr,

343 F. Supp. 51 (M.D. Tenn. 1972).................. 2

Langsdon v. Millsaps,

9 F. Supp. 2d 880 (W.D. Tenn. 1998)............... 2

Mader v. Crowell,

498, F. Supp. 226 (M.D. Tenn. 1980)............... 2

Mader v. Crowell.

506 F. Supp. 484 (M.D. Tenn. 1981)................ 2

LULAC v. Perry,

548 U.S. 399 (2006).............. ahaeatiewvddan danas 36, 37

Moore v. State,

436 S.W.3d 775 (Tenn. 2014)............cc.cccccceeen. 2

Ohio ex rel. Davis v. Hildebrant,

BP rete IIIS bc Waecvacte che sicé cac-eveeéavcescecee 27

Republican Party of N.C. v. Hunt,

1996 U.S. App. LEXIS 2029 (4th Cir. 1996).... 34

Reynolds v. Sims,

es I We ousndcdovacevsdeeccccctsce ease 31, 42

Rural West Tenn. African-American Affairs Counci]

v. Sundquist,

209 F.3d 835 (6th Cir. 2000)................................ 2

Smiley v. Holm,

Sy Py I I ibaca cécckscecdccnnsccdcce vente 27, 28

State ex rel. Lockert v. Crowell

631 S.W.2d 702 (Tenn. 1982)................ccccecs., 2

State ex rel. Morris v. Wrightson,

er Ns os cho dicr ceycoavesnccceaasedsaxt 24

v1

State ex rel. Norwood v. Holden,

ee ee is uted sackiinekice ideusevecanss 25

Sullivan v. Crowell,

444 F. Supp. 606 (W.D. Tenn. 1978)............56:. 2

Tedesco v. Orleans Par. Bd. of Supervisors,

ee Oe Eo. oc cdescansvsnancnevedtueipaee 30

Vieth v. Jubelirer,

NE WE IN cicecsescvsscocceveesosses ene passim

White v. Crowell,

434 F. Supp. 1119 (W.D. Tenn. 1977)....... ee 2

Wise v. Lipscomb,

I BP OED ray son cas ccc esccsdectseresecpes 2

Wood v. Broom,

NE ol sweneversseasuats 25, 28, 29

Constitutions

Sere CAE TEM, Lcisccnccevecenssever cts beessneceses .9

I I MOOD, Tl Gis con secccccev ves cisnceves cuenasecs 30

Statutes

Reapportionment Act of 1929,

ois sec ccivecceccuccesvavensccaases 26

vill

Other Authorities

Bill Henderson, /nnovation in Organizations, Part Il

(Jul. 23, 2017), avarlable at

http://www.legalevolution.org/2017/07/innovatio

n-in-organizations-part*1-O16/.....0....00..c ee 37

DEBATES ON THE FEDERAL CONSTITUTION (J. Elliott

ens a sacaecussents 10, 11

ELMER C. GRIFFITH, THE RISE AND DEVELOPMENT OF

THE GERRYMANDER

(University of Chicago 1907).................. passim

ERIK J. ENGSTROM, PARTISAN GERRYMANDERING AND

THE CONSTRUCTION OF AMERICAN DEMOCRACY

(The University of Michigan Press 2013)........ 21

Gabriel J. Chin, Justifving A Revised Voting Rights

Act’ The Guarantee Clause and the Problem of

Minority Rule, 94 B.U. L. Rev. 1551 (2014)..... 22

H.R. MCILWAINE, ED., JOURNALS OF THE HOUSE OF

BURGESSES, 1619-1659 (Virginia State Library

i SEDER a Pe RA rere ve Ute SF pesto OPCs er UrE EE ral

James A. Gardner, Foreword: Representation

Without Party’ Lessons from State

Constitutional Attempts to Control

Gerrymandering,

37 Rutgers L. J. 881 (2006)............ccscessceeeees 23

vill

J. DOUGLASS SMITH, ON DEMOCRACY’S DOORSTEP:

THE INSIDE STORY OF HOW THE SUPREME COURT

BROUGHT ONE PERSON, ONE VOTE TO THE UNITED

STATES (Hill and Wang 2014)..................000000: 7

Jenni Salmon, Odio’ 1842 Election: Absqatulators

vs. Gerrymanderers, Ohio Memory (Sep. 6,

2013),

http://www.ohiohistoryhost.org/ohiomemory/arch

ERATE TGS MC RE Rae Si Mec POON ay eee KORTE 21

Laughlin McDonald, Symposium: Election Law’ The

Looming 2010 Census: A Proposed Judicially

Manageable Standard and Other Reform

Options for Partisan Gerrymandering, 46 Harv.

FS BE Cov cccdcccdccesccecccasoccscs 24, 25

Matthew S. Gottlieb, Encylopedia Virginia, House of

Burgesses (Feb. 6, 2012), available at

https://www.encyclopediavirginia.org/House_of_

Ee PENS aoe ee RL. RRS Pew 8

Michael W. Catalano, Aidd v McCanless: The

Genesis of Reapportionment Litigation In

Tennessee, 44 Tennessee Historical Quarterly

DO, Fe NN IN bc cevvcvcccesvncsésyscecessoses 31

PETER H. ARGERSINGER, REPRESENTATION AND

INEQUALITY IN LATE NINETEENTH-CENTURY

AMERICA: THE POLITICS OF REAPPORTIONMENT

(Cambridge University Press 2012)............... 24

RECORDS OF THE CONSTITUTIONAL CONVENTION OF

1787 (Max Farrand ed., rev. ed. 1966)...11, 14, 16

1X

SEAN TRENDE, THE LosT MAJORITY (Palgrave

ee . ccadeepnceenve bi ee a a eee 40

THOMAS JEFFERSON, NOTES ON THE STATE OF

VIRGINIA (Peden ed. 1955).............ecececcevececs 17

WILLIAM SAFIRE, SAFIRE’S POLITICAL DICTIONARY

(Oxford University Press 2008)................6.0.. 18

STATEMENT OF INTEREST!

Amici are members of the Tennessee State

Senate, appearing in their individual capacities: the

Speaker of the Senate, Randy McNally, who

represents the Fifth Senatorial District, and is also

the Lieutenant Governor of Tennessee; Senator Mae

Beavers, who represents the Seventeenth Senatorial

District; Senator Mike Bell, who represents the

Ninth Senatorial District; Senator Janice Bowling,

who represents the Sixteenth Senatorial District:

Senator Rusty Crowe, who represents the Third

Senatorial District; Senator Dolores Gresham, who

represents the Twenty’Sixth Senatorial District;

Senator Ferrell Haile, who represents’ the

Eighteenth Senatorial District; Senator Edward

Jackson, who represents the Twenty-Seventh

Senatorial District; Senator Jack Johnson, who

represents the Twenty-Third Senatorial District:

Senator Brian Kelsey, who represents the Thirty-

First Senatorial District; Senator Bill Ketron, who

represents the Thirteenth Senatorial District;

Senator Jon Lundberg, who represents the Fourth

Senatorial JDistrict; Senator Jim Tracy, who

represents the Fourteenth Senatorial District; and

Senator Ken Yager, who represents the Twelfth

Senatorial District.

The Senate and House of Representatives will

have primary responsibility for redistricting and

' Counsel for all parties have consented to this filing. No

counsel for any party authored this brief in whole or in part,

and not entity or person aside from amici curiae, their

members, and their counsel made any monetary contribution

toward the preparation or submission of this brief.

reapportionment following the next decenmal

census. This Court has “repeatedly held that

redistricting and reapportioning legislative bodies is

a legislative task ...”

Tennessee has experienced substantial

litigation over its redistricting.’ If this Court affirms

the court below and validates Appellees’ social

science theory, this would lead to countless, and

endless, lawsuits and appeals over minutiae.

The existing objective guidelines for

redistricting, which the Wisconsin Legislature

followed, provide sufficient standards for state and

local legislative bodies to follow in drawing districts.

It would be impossible and counterproductive for

courts to interject themselves further into the

myriad complex and nuanced considerations, and the

balancing of numerous competing interests that go

into the drawing of local, state, and federal districts.

2 Wise v Lipscomb, 437 U.S. 535,539 (1978).

5 Baker v. Carr, 369 U.S. 186 (1962); Rural West Tenn.

African-American Affairs Council v. Sundquist, 209 F.3d 835

(6th Cir. 2000), cert. denied, 531 U.S. 944 (2000); Crene v.

Darnell, 176 ¥. Supp. 2d 814 (W.D. Tenn. 2001); Langsdon v.

Millsaps, 9 F. Supp. 2d 880 (W.D. Tenn. 1998); Mader v.

Crowell, 506 F. Supp. 484 (M.D. Tenn. 1981); Mader v. Crowell,

498 F. Supp. 226 (M.D. Tenn. 1980); Su//ivan v Crowell, 444 F.

Supp. 606 (W.D. Tenn. 1978); WaAite v. Crowell, 434 F. Supp.

1119 (W.D. Tenn. 1977); AKopald v. Carr, 343 F. Supp. 51 (M.D.

Tenn. 1972); Moore v. State, 436 S.W.3d 775 (Tenn. 2014);

State ex rel Lockert v. Crowell, 631 S.W.2d 702 (Tenn. 1982).

SUMMARY OF ARGUMENT

Political gerrymanders are as old as

representative government. Gerrymanders were

known from the Colonial era, during the

Constitutional Convention, through the early

Republic, throughout the Nineteenth Century and

up to the present day.

Even though gerrymandering was well-known

and understood when the Constitution was written

and ratified, it is silent as to Aow legislative and

Congressional districts may be drawn. Certainly,

the Constitution does not forbid _ political

considerations in the drawing of districts. While it

does expressly contain authority for Congressional

oversight, it does not specify authority for judicial

oversight of legislative political gerrymanders. The

judiciary simply cannot effectively do so.

Since this Court’s ruling in Davis v

Bandemer,‘ courts have sought, but have failed to

define, a judicially manageable standard by which to

adjudicate political gerrymander claims. Beyond

applying the existing, well-understood standards for

constitutionally drawing districts, courts cannot

perform the purely legislative function of drawing

districts from the village level to the Congressional

level, nor were they meant to.

In adopting any artificial standard, including

the proposed efficiency gap standard, the Court

would transform the basis of representation from

district-based representation, to one of externally-

dictated proportional representation, a result plainly

4‘ 478 U.S. 109 (1986).

precluded by precedent, and a policy decision about

the fundamental nature of representation that this

Court should recognize as beyond its jurisdiction and

beyond the bounds of the Constitution.

o

ARGUMENT

“Political gerrymanders are not new to the

American scene.”5 In 1907, Elmer Cummings

Griffith could say: “Aside from the one case of the

gerrymander in Massachusetts which gave rise to

the term itself, but little has been written

collectively upon the general subject, at least prior to

the famous decision of the courts in the state of

Wisconsin.”® This is, unfortunately, no longer the

case. The political gerrymander has been discussed

extensively in the courts, in academia, by the

political pundits, and in the public square. That

discussion arises from courts’ entertaining novel

arguments for additional standards, not from an

increase in gerrymandering itself.

I. Colonial America through the Founding

The political gerrymander is probably as old

as representative government itself and was well

known by the time the Constitution was drafted.

The basic principle of apportioning representatives

among governmental entities, towns, or counties, as

opposed to blocs of equal population took hold in the

Colonies, even though to the Colonists, the English

system of representation was a model of governance

5 Vieth v. Jubelirer, 541 U.S. 267, 274 (2004).

6 ELMER C. GRIFFITH, THE RISE AND DEVELOPMENT OF THE

GERRYMANDER 3 (University of Chicago 1907) (hereinafter

“GRIFFITH’).

to be avoided rather than imitated.’ In his plurality

opinion in Vieth v Jubilirer, Justice Scalia noted:

One scholar traces them back to the

Colony of Pennsylvania at the

beginning of the 18th century, where

several counties conspired to minimize

the political power of the city of

Philadelphia by refusing to allow it to

merge or expand into surrounding

jurisdictions, and denying it additional

representatives. In 1732, two members

of His Majestys Council and the

attorney general and deputy inspector

and comptroller general of affairs of the

Province of North Carolina reported

that the Governor had proceeded to

“divide old Precincts established by

Law, & to enact new Ones in Places,

whereby his Arts he has endeavoured to

prepossess People in a future election

according to his desire, his Designs

herein being either to endeavor by his

means to get a Majority of his creatures

in the Lower House” or to disrupt the

assembly’s proceedings.

The practice originates from the British

system of representation, upon which the colonial

system was based. “In the British model, towns, or

‘boroughs’ were assigned representation in the

House of Commons. As British citizens moved

Baker v. Carr, 369 U.S. 186, 307 (1962) (Frankfurter, J

dissenting).

& Vieth, 541 U.S. at 274 (internal citations omitted).

around and once flourishing population centers

declined, representation remained (fixed and

ultimately produced what was called a ‘rotten

borough.”® In the Colonies, apportionment was a

political tool in the struggles between the King of

England and the Royal Governors, on the one hand,

and the colonial Legislatures, on the other hand.!°

Later, it became a tool used in the tensions between

the older “tidewater regions” and the newer interior

areas of the country.!!

Numerous early examples’ of political

gerrymanders abound:

In some, as in Massachusetts and

Rhode Island, numbers of electors were

taken into account, in a rough fashion,

by allotting increasing fixed quotas or

representatives to several towns or

classes of towns’ graduated by

population, but in most of the colonies

delegates were allowed to the local

units without respect to numbers. This

resulted in grossly unequal electoral

units. The representation ratio in one

* Id. at 331 n. 25; see also J. DOUGLASS SMITH, ON

DEMOCRACY’S DOORSTEP: THE INSIDE STORY OF HOW THE

SUPREME COURT BROUGHT ONE PERSON, ONE VOTE TO THE

UNITED STATES 12 (Hill and Wang 2014).

0 =Baker, 369 U.S. at 307-08 (citing WILLIAM S. CARPENTER

THE DEVELOPMENT OF AMERICAN POLITICAL THOUGHT 48-49, 54

(Princeton University Press 1930) (hereinafter “CARPENTER’);

GRIFFITH at 26, 28-29).

1 Jd. (citing CARPENTER 87: Griffith 26-29, 31).

North Carolina county was more than

eight times that in another.!

Virginia originally assigned representation in

the House of Burgesses by settlement or plantation

in the British fashion.'* Later assignments were

made by towns or combinations of towns and then by

counties.'4 The weakest bodies in colonial Virginia

were the colonial Assemblies, composed of a House,

popularly elected by the Colonists from election

districts composed of towns, parishes or counties,

and a Governors Council, composed of his

appointees.'!5 As counties were created, the House of

Burgesses grew from 22 in 1619 to 120 in 1775.'6

By 1776, Virginia, was divided into twenty-

four Senatorial Districts of one to three counties,

resulting in the gerrymandering of the colony. The

dominant faction combined large numbers of their

opponents’ supporters into a district (“packing”), and

spread out their supporters into multiple other

districts (“cracking”).'7 The result was that as few as

nineteen thousand (19,000) men from a few counties

would elect half of the colony’s forty Senators, while

the remainder of the colony, with thirty thousand

(30,000), would only elect twelve.!8

2 Ia.

‘3 Matthew S. Gottlieb, Encylopedia Virginia, House of

Burgesses (Feb. 6, 2012), available at https://www.encyclopedia

virginia. org/ House_of_Burgesses.

14 Id.

16 Jd.

6 H.R. MCILWAINF, ED., JOURNALS OF THE HOUSE OF

BURGESSES, 1619-1659 vi (Virginia State Library) (1915).

17 GRIFFITH at 30-31.

6 Jd.

So notorious was the practice, that the

Declaration of Independence included it as one of the

list of grievances against the King of England: “He

has refused to pass laws for the accommodation of

large districts of people, unless those people would

relinquish the right of representation in the

Legislature, a right inestimable to them and

formidable to tyrants only.”!®

Il. Gerrymander and the Constitution

A. The Constitutional Convention

Having experienced political gerrymandering

firsthand, the delegates to the Constitutional

Convention considered whether congressional

districts should be drawn by kh: states or by

Congress and concluded that the districts should be

drawn by the states. In the Convention, discussions

of what would become known as gerrymandering

centered around the proposed language of the

Elections Clause found at Article I, § 4.29 During the

Convention, there was some appetite for federal

control over the drawing of districts, purportedly to

prevent unfair practices, but the majority of the

Framers agreed that the cure of ceding to Congress

the control over drawing districts would have been

worse than the disease. Eventually, a balance was

struck, whereby state Legislatures would draw

‘9 ‘THE DECLARATION OF INDEPENDENCE para. 5 (U.S. 1776).

20 The Elections Clause states that “The Times Places and

Manner of holding elections for Senators and Representatives,

shall be prescribed in each State by the Legislature thereof; but

the Congress may at any time by Law make or alter such

Regulations, except as to the Places of chusing Senators.” U.S.

CONST. art. I, § 4, cl. 1 (emphasis added).

10

Congressional districts but Congress could intervene

if deemed necessary.

The Convention made no effort to address the

districting of the state legislative bodies, even

though it was the state Legislatures that elected the

Senators. Much of the spirited debate regarding

whether to cede control of drawing districts to

Congress focused on the proposed “make or alter”

language of the Eleciions Clause.2!_ During the

debate, South Carolinians Charles Pinckney and

John Rutledge attempted to strike the proposed

language.22, Some delegates were concerned that

Congress would abuse its power and deprive the

“rights of the people to a free and equal

representation in Congress” by drawing uneven lines

to favor a particular political faction. Conversely,

others feared state election fraud,2° centralized

voting locations,*4 and various schemes that states

might devise to “counteract the will of a majority of

the people.”*° James Madison's reasoned response to

his fellow delegates was that to give Congress the

power to “check partisan manipulation of the

[drawing of Congressional districts] by the states”

21. Vieth, 541 U.S. at 275

22 Jd. (quoting 2 RECORDS OF THE CONSTITUTIONAL

CONVENTION OF 1787 240°41 (Max Farrand ed., rev. ed. 1966)

(hereinafter “FARRAND’S RECORDS’)).

23 § DEBATES ON THE FEDERAL CONSTITUTION 401-402 (J.

Elliott ed., 2d ed. 1876) (hereinafter “ELLIOTT’S DEBATES”).

24 3 Jd. at GO.

25 2 Id. at 49.

11

would prevent district inequities from infecting

Congress, like it had “infected” state Legislatures.”®

At the forefront of Madison’s mind was likely

the most egregious inequality at the time: the thirty

(30) delegates allotted to Charleston in_ the

Legislature of Pinckney’s and Rutledge’s home state,

South Carolina.2? Ultimately, Madison’s rhetorical

skills prevailed, as the Convention unanimously

approved the Elections Clause.2® During the state

ratification debates, even Pinckney defended the

federal check on state legislative power over drawing

Congressional districts to his fellow South

Carolinians.?9

The Framers arrived at a balance of power

and dispersal of competing interests (both laterally,

by separation of powers, and _ vertically, by

federalism, especially as enunciated _ shortly

thereafter in the Ninth and Tenth Amendments),

and established a framework for governing. As

noted by the VietA plurality, a Massachusetts

delegate said at his state's ratifying convention that:

Without these powers in Congress, the

people can have no remedy; but the 4th

section provides a remedy, a controlling

power in a legislature, composed of

senators and representatives of twelve

states, without the influence of our

commotions and factions, who will hear

26 «=6Vieth, 541 U.S. at 275 (quoting 2 FARRAND’S RECORDS at

240-24)).

27 3 FARRAND’S RECORDS at 267.

28 4 ELLIOTT’S DEBATES at 303.

29 Id.

12

impartially, and preserve and restore to

the people their equal and sacred rights

of election.*°

Conspicuously absent from any of the

Constitutional Convention debates was any

discussion of the judiciary as an appropriate check

on the drawing of Congressional or Legislative

districts that one faction or another thought was

unfair, or any discussion that representation should

be proportional based on relative sizes or strengths

of different interests. In fact, the provision granting

Congress oversight implicitly rejects the notion of

judicial oversight or approval of proportional

representation.

B. The State Ratifying Conventions

Debate on the issue continued during the

ratifying conventions in the states. In 1788 at the

Massachusetts’ ratifying convention, Virginia's

redistricting practices were compared to other

states:

Hon. Mr. King rose to pursue the

inquiry, why the place and manner of

holding elections were omitted in the

section under debate. It was to be

observed, he said, that in_ the

Constitution of Massachusetts, and

other States, the manner and place of

elections were provided for; the manner

was by ballot, and the places towns; for,

said he, we happened to settle

originally in townships. But it was

30 =Vieth, 541 U.S. at 276 (quoting 2 ELLIOTT’S DEBATES at 27

13

different in the southern States. He

would mention an instance. In Virginia

there are but fifteen or twenty towns,

and seventy or eighty counties;

therefore no rule could be adopted to

apply to the _ whole. If it was

practicable, he said, it would be

necessary to have a district the fixed

place. But this is liable to exceptions;

as a district that may now be fully

settled, may in time be scarcely

inhabited; and the back country, now

scarcely inhabited, may be fully settied.

Suppose this State thrown into eight

districts, and a member apportioned to

each: if the numbers increase, the

representatives and districts will be

increased. The matter, therefore, must

be left subject to the regulation of the

State legislature, or the _ general

government. Suppose the State

legislature, the circumstance will be the

same. It is truly said, that our

representatives are but a part of the

Union, and that they may be subject to

the control of the rest; but our

representatives make a ninth part of

the whole, and if any authority is

vested in Congress it must be in our

favor. But to the subject: in Connect

cut they do not choose by numbers, but

by corporations. Hartford, one of their

largest towns, sends no more delegates

than one of their smallest corporations,

each town sending two, except latterly,

14

when a town was divided. The same

rule is about to be adopted in Rhode

Island. The inequality of such

representation, where every corporation

would have an equal right to send an

equal number of representatives, was

apparent. In the southern States, the

inequality is greater. By _ the

Constitution of South Carolina, the city

of Charleston has a right to send thirty

representatives to the General

Assembly, the whole number of which

amounts to two hundred. The back

parts of Carolina have increased greatly

since the adoption of their Constitution,

and have frequently attempted an

alteration of this unequal mode of

representation; but the members from

Charleston, having the balance so much

in their favor, will not consent to an

alteration; and we _ see that’ the

delegates from Carolina in Congress

have always been chosen from the

delegates of that city. The

representatives, therefore, from that

State, will not be chosen by the people,

but will be the representatives of a

faction of that State. If the general

government cannot control in this case,

how are the people secure?*!

3 FARRAND’S RECORDS at 267 (Rufus King in the

Massachusetts Convention).

oad

uN

At the Virginia ratifying convention, Madison

described the situation in South Carolina:

With respect to the other point, it was

thought that the regulation of time,

place, and manner of electing the

representatives, should be uniform

throughout the continent. Some states

might regulate the elections on the

principles of equality, and others might

regulate them otherwise. This diversity

would be obviously unjust. Elections

are regulated now unequally in some

states, particularly South Carolina,

with respect to Charleston, which is

represented by 30 members. — Should

the people of any state, by any means

be deprived of the right of suffrage, it

was judged proper that it should be

remedied by the general government.

It was found impossible to fix the time,

place, and manner, of the election of

representatives in the constitution. It

was found necessary to leave the

regulation of these, in the first place, to

the state governments, as being best

acquainted with the situation of the

people, subject to the controul of the

general government, in order to enable

it to produce uniformity, and prevent its

own dissolution. And considering the

state governments and __ general

government as distinct bodies, acting in

different and independent capacities for

the people, it was thought’ the

particular regulations’ should be

16

submitted to the former, and the

general regulations to the latter. Were

they exclusively under the controul of

the state governments, the general

government might easily be dissolved.

But if they be regulated properly by the

state legislatures, the congressional

controul will very probably never be

exercised. The power appears to me

satisfactory, and as unlikely to be

abused as any part of the constitution.’

Interestingly, the participants in the

ratification debates were quick to condemn the flaws

in other states’ redistricting processes, while failing

to acknowledge their own. Nonetheless, the debates,

both in the Constitutional Convention and in the

state ratifying conventions, make clear that the

Founders were well aware of the issue of political

gerrymanders. Even so, the state’ ratifying

conventions did not propose that the Constitution

include judicial oversight.

Ill. The Early Republic to 1842

A. Early State Approaches to Gerrymandering

1. Gerrymandering in the States

The growth of representative government and

population invariably led to frequent adjustments of

county boundaries and creation of new counties, a

practice that was frequently abused during the

colonial era for the purpose of securing political

advantage.* The practice of _ political

% Jd. at 311 (James Madison at the Virginia Convention).

$3 TRIFFITH at 24°25.

17

gerrymandering and the attempts to restrain it were

common, well understood, and frequently practiced

in numerous states before 1812.54

In 1789, early allegations of gerrymandered

Congressional districts appeared in New York

newspapers after the state was divided into districts.

The New York Legislature, controlled by the

Federalists, added several towns from the Second

District of Westchester (a Federalist district) to the

Third District of Dutchess (an Anti-Federalist

district), converting Dutchess to a _ Federalist

district.°° Further, the statute originally creating

the districts was later amended to allow each district

to elect its representative from the state at large,

suggesting that the Federalists sought a particular

result from future elections.*6

In Virginia, Thomas Jefferson recorded that

some counties with disparities in populations of up

to seventeen times those of other counties elected the

same number of Representatives and that 19,000

men living east of the mountains elected half of the

Senators and almost half of the Delegates.3”

In 1780 in South Carolina, three southern

districts with a population of fewer than 29,000

elected twenty Senators and seventy Assembly

members, while other parts with a population of over

& J/d. at 61.

35 Jd. at 42-43.

% Jd.

3’ 6 Baker, 369 U.S. at 308-09 (citing THOMAS JEFFERSON,

NOTES ON THE STATE OF VIRGINIA (Peden ed. 1955).

18

111,000 only elected seventeen Senators and fifty

four Assemblymen.**

In 1792, when Congressional districts were

being established in Virginia, fears of continued

gerrymandering led George Mason to proclaim that

the districts should not be created with a view

towards serving any particular party.*”

The most famous gerrymander is undoubtedly

that of the reconfiguring of the Essex County

Senatorial district of Massachusetts in 1812, from

which the term gerrymander arose.

described how the term came to be:

The term is derived from the name of

Governor Gerry, of Massachusetts, who

in 1811 signed a bill readjusting the

representative districts so as to favor

the Democrats and weaken the

Federalists, although the last named

party polled nearly two-thirds of the

votes cast. A fancied resemblance of a

map of the districts thus treated led

Stuart, the painter to add a few lines

with his pencil, and say to Mr. Russell,

editor of the Boston Centinel, “That will

do for a salamander.” Russell glanced

at it: ‘Salamander! Said he, “Call it a

Gerrymander.”*

% Jd. (citing CARPENTER at 139-40).

39

40

GRIFFITH at 46.

WILLIAM SAFIRE, SAFIRE’S POLITICAL

(Oxford University Press 2008).

DICTIONARY

William Safire

289

19

From 1812 through 1840, the gerrymander

would continue to replicate itself in Massachusetts

and elsewhere. In Massachusetts, there were

gerrymanders of the commonwealth’s state Senate or

Congressional districts in 1814, 1816, 1820, 1822.

1824, 1932, and 1842. In New Hampshire,

gerrymanders of the state Senate and Congressional

districts took place in 1816 and 1824. Gerrymanders

also occurred in 1816 and 1832 in Maryland: in

Connecticut in 1835; and in Pennsylvania’ legislative

districts in 1836.4!

2. States that Took Steps to Avoid

Gerrymandering

Gerrymandering was so prevalent in the early

Republic that attempts to legislate against it date

back to at least 1790, in Pennsylvania. While

drafting Pennsylvania’s second Constitution, the

Legislature divided the commonwealth into

Senatorial districts. Where multiple counties formed

a district, Pennsylvania’s Constitution imposed

requirements that the counties be adjoining and that

counties and cities could not be divided between

districts. These provisions would later be attributed

to the attempt to prevent gerrymandering. ‘2

Following Pennsylvania’s lead, Tennessee in

1796 and Kentucky in 1799 adopted similar clauses

in their Constitutions aimed at prohibiting or

limiting gerrymandering.** Likewise, the 1819

" GRIFFITH at 88-97, 99-102, 104-08; 111-12: and 114-15.

42 Id. at 44°45.

43 Jd. at 45.

20

Alabama Constitution contained provisions tending

to restrict the possibilities of gerrymandering.*4

Early Nineteenth Century demands from the

interior for more equal representation became more

insistent. This period in our nation’s history was

replete with fierce sectarian and party strife

regarding the geographic allocation of

representation,‘ producing a variety of

apportionment methods to address the growing

population. For example, the apportionment

disparity in Virginia became a major factor in

precipitating the call of a constitutional convention

to address the issue in 1829;47 however, in no case

did the state remedy _ involve proportional

representation.

B. Later Effects of State Gerrymandering

The importance and effect of gerrymandering

at this stage in our nation’s history were amplified,

by the fact that state Legislatures could control their

representatives to both branches of Congress. Since

Senators were elected by state Legislatures,

gerrymandering of state legislative districts could

determine which faction picked the state’s Senators,

and the gerrymandering of United States House

districts could yield the state Legislature control of

that branch of Congress.

4 Jd. at 95.

* Jd. (citing CARPENTER at 130-37; ROBERT LUCE, LEGISLATIVE

PRINCIPLES: THE HISTORY AND THEORY OF LAWMAKING 364-65

(Houghton Mifflin Company 1930); GRIFFITH at 116-17).

% Jd. at 310.

7 Jd. at 310 (crting GRIFFITH at 102-04).

21

“By 1840, the gerrymander was a recognized

force in party politics and was generally attempted

in all legislation enacted for the formation of election

districts. It was generally conceded that each party

would attempt to gain power which was _ not

proportionate to its numerical strength.”’** In 1842,

Congress imposed districting ending the long:

standing practice of electing United States

Representatives via general ticket.49 By that time,

the two-party system had developed into “large-scale

electoral machines focused on wining mass-based

elections and capturing control of the national

government.”50

Legendary gerrymanders of Congressional

districts occurred in Ohio beginning in the 1840's.

Ohio followed the traditional policy of redistricting

once every ten years, following the census until

1842, when the Democratic controlled Legislature

apportioned Ohio’s Congressional districts in a

manner that the Whigs considered grossly unfair

and partisan.®! Subsequently, the Whigs regained

control of the Legislature (despite running under a

Democratic gerrymander) and remapped the state in

1844-1845. This was the first time a Legislature

% Vieth, 541 U.S. at 274-75 (quoting GRIFFITH at 123).

“9 ERIK J. ENGSTROM, PARTISAN GERRYMANDERING AND THE

CONSTRUCTION OF AMERICAN DEMOCRACY 43 (The University of

Michigan Press 2013).

50 Jd.

st Jenni Salmon, Ohios 1842 Election: Absgatulators vs.

Gerrymanderers, Ohio Memory (Sep. 6, 2013), http://www.

ohiohistoryhost.org/ohiomemory/archives/133.

22

exercised the implied power to redistrict a state mid-

decade.5?

Partisan gerrymandering had become a

thoroughly ingrained aspect of our national two-

party system; however, no egregious redistricting

was the subject of action by Congress until

Reconstruction.®3

IV. Congressional and State Reapportionment 1842-

1962

A. Congressional Oversight of Gerrymandering

Until Congress imposed Congressional

districts in 1842, the manner in which states chose

their Representatives owas not uniform.*4

Thereafter, in the Nineteenth and Twentieth

Centuries, Congress used its authority under Article

I, § 4, to restrain gerrymandering of Congressional

districts through a series of Apportionment Acts,

culminating in the Reapportionment and Census Act

of 1929.55 Through the Apportionment Acts,

Congress exercised its power in attempts to restrain

gerrymandering by requiring district contiguity and

compactness, and single-member districts. The Acts

also required that each district contain as equal a

number of persons as practicable. Even so, whatever

the controlling Apportionment Act at the time,

52 Ja.

53 Gabriel J. Chin, Justifving A Revised Voting Rights Act-

The Guarantee Clause and the Problem of Minority Rule, 94

B.U. L. Rev. 1551, 1565 (2014).

54 Colegrove v. Green, 328 U.S. 549, 555 (1946).

55 =Vieth, 541 U.S. at 276.

23

disparities in population of districts continued to

prevail.°®

The requirements of single-member districts®’

and districts “composed of contiguous territory”®*

were first imposed in the Apportionment Act of 1842.

With that statute, the gerrymandering practice of

switching between at‘large and_ districted

Congressional elections for political advantage by

opportunistic majorities in state Legislatures was

effectively stopped.5® All Apportionment Acts passed

after 1842, until 1872, reiterated the single-member

and contiguity requirements.

The Apportionment Act of 1872 added the

requirement that the population of each district

have, “as nearly as practicable,” an equal number of

inhabitants.*' Finally, a compactness requirement

for Congressional districts was adopted in the

Apportionment Act of 1901.% The contiguity,

compactness, and equality of population

requirements were reiterated in each Apportionment

Act from 1842 through the Apportionment Act of

1911. After 1911, they were intentionally

5% Colegrove, 328 U.S. at 555.

57 ~=6 Vieth, 541 U.S. at 276.

58 Id. (citing GRIFFITH at 12 (noting that the law was “an

attempt to forbid the practice of the gerrymander’)).

58 James A. Gardner, Foreword: Representation Without

Party: Lessons trom State Constitutional Attempts to Control]

Gerrymandering, 37 Rutgers L. J. 881, 913 (2006).

60 The contiguity and equality of population requirements

were repeated in the Apportionment Acts of 1862, 1872, 1882,

1892, and 1901.

61 Vieth, 541 U.S. at 276.

62 Jd.

24

discontinued.®* Only the single-member districts

requirement remains today.®*!

None of the Apportionment Acts adopted

proportional representation.

B. Legislation in the States

From 1846 to 1889, the New Jersey

Legislature passed no less than eighteen (18) acts

and supplemental acts regulating elections.® In

1871, the Legislature introduced a new system for

constructing Assembly districts, “plainly for the

furtherance of political purposes,”®* leading to

arbitrary, grotesquely shaped districts where

qualified voters of one political party were amassed

to secure their advantage against those of the other

party.®’

From 1879 to 1886, the Ohio Legislatures

redistricted the states’ Congressional districts four

times achieving a partisan advantage in the House

and Senate delegations.®

63 Wood v. Broom, 287 U.S. 1, 7 (1932). (‘It was manifestly the

intention of the Congress not to re-enact the provision as to

compactness, contiguity, and equality in population with

respect to the districts to be created pursuant to the

reapportionment under the Act of 1929.”).

64 WVieth, 541 US. at 276.

65 State ex rel. Morris v. Wrightson, 56 N.J.L. 126, 186-87;

204-06 (1893).

66 =. at 204.

67 Jd

68 PETER H. ARGERSINGER, REPRESENTATION AND INEQUALITY

IN LATE NINETEENTH*CENTURY AMERICA: THE POLITICS OF

REAPPORTIONMENT (Cambridge University Press 2012).

nm

ol

In 1882, South Carolina adopted a

Congressional redistricting plan described as “one of

the most complete gerrymanders ever drawn by a

legislative body.*® While the backdrop of this

gerrymander was the aftermath of Reconstruction, it

is a prime example of the practice that would one

day be called “packing.” Democrats, in an attempt to

dilute the power of the black, Republican majority in

the state, drafted what has been termed the “boa

constrictor” district, running from Columbia nearly

to Savannah, splitting six counties, and at one point

extending into the Atlantic Ocean to exclude

Democrats from the district.’°

In 1891, the Commission (including the lame

duck Commissioners) of Murray County, Minnesota

redrew the county's district map after the 1890

election, but before the newly elected Commissioners

could take office. At the time of the election, each

newly elected Commissioner lived within his

respective district.7! The effect of the redrawn map

was that the Commissioners-Elect no longer resided

in the districts in which they had run.” After the

redistricting, the Commission met and determined

the Commissioners-Elect were no longer qualified to

take the offices they had won, and appointed the

lame-duck Commissioners to succeed themselves. ’*

69 Laughlin McDonald, Symposium: Filection Law’ The

Looming 2010 Census: A Proposed Judicially Manageable

Standard and Other Reform Options for Partisan

Gerrymandering, 46 Harv. J. on Legis. 243, 246 (2009).

7 Id.

a Id.

72 State ex rel. Norwood v. Holden, 47 N.W. 971, 972 (1891).

3 Id. at 315.

26

C. Later Congressional Action

The Reapportionment and Census Act of 1929

was a combination census and reapportionment

statute establishing a permanent method for

apportioning a constant 435 seats in the House of

Representatives. In 1932, this Court, in Wood v.

Broomheld that the provisions of each

Apportionment Act affected only the apportionment

for which they were written, thereby eliminating the

size and population requirements of previous

Apportionment Acts, which were last required in

the Apportionment Act of 1911.74 The

Reapportionment act of 1929 eliminated any

mention of districts, allowing the political parties in

control of state Legislatures to draw districts of

various sizes or to abandon districts altogether.”

In 1941, Congress passed the last

Apportionment Act. The statute did nothing further

to address political gerrymanders. In the years that

followed, courts began wading into the “political

thicket” of political gerrymander cases.’© Congress's

decision not to regulate further in this area may well

be based on judicial decisions to apply the Equal

4 =Broom, 287 U.S. at 8 (1932).

5 Reapportionment Act of 1929, 2 U.S.C. § 2(a) (1929).

76 See Baker, 369 U.S. at 270. (Frankfurter J. dissenting)

(stating that Baker “is the latest in the series of cases in which

the Equal Protection and Due Process Clauses of the

Fourteenth Amendment have been invoked in federal courts as

restrictions upon the power of the States to allocate electoral

weight among the voting populations of their various

geographical subdivisions.”)

27

Protection and Due Process Clauses in their anti-

gerrymandering attempts.’’

Even before Baker v. Carr, decided in 1962,

federal courts had considered political

gerrymandering cases;*® however, in cases raising

issues regarding redistricting of state political

subdivisions, courts consistently refused to exercise

their powers to fashion equitable remedies.’°

In 1916, in Ohio ex rel. Davis v. Hildebrant,

this Court affirmed the lower court’s refusal to

dismiss a case for lack of subject-matter

jurisdiction.*® Ohio citizens had held a referendum

in which they rejected the Legislature’s then

Congressional redistricting plan. The lower court

dismissed the suit, which sought a writ of

mandamus to order state election officials to ignore

the referendum vote. The lower court denied the

writ, holding that the referendum disapproving the

law was part of the state’s “legislative power” and

that the disapproved law was not entitled to be

enforced by mandamus.*! In reviewing the case, this

Court concluded that it could either dismiss the case

for want of federal question § subject-matter

jurisdiction, or affirm the lower court on the merits

of the case.52 The Court determined that the

controversy contained sufficient federal

characteristics to reject dismissal for want of

" Baker, 369 U.S. at 270.

78 Jd. at 201.

79 Jd. at 279.

69 Jd: see also Ohio ex rel. Davis v. Hildebrant, 2A1 U.S. 565

(1916).

8) Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 567 (1916).

82 Id. at 570.

28

jurisdiction and instead addressed the merits,

affirming the lower court.**

In the 1916 case of Smiley v. Holm,** this

Court reversed the Minnesota Supreme Court’s

dismissal of a suit seeking to enjoin the Secretary of

State from implementing Minnesota Congressional

redistricting legislation.“ The state had been

required to reapportion because of a decrease in

population. The Legislature had _ passed

reapportionment legislation which the Governor

vetoed: however, pursuant to legislative resolution

the bill was nevertheless sent to the Secretary of

State. A citizen sued, seeking a declaratory

judgment that the reapportionment legislation was

unconstitutional because the Governor had vetoed it.

The trial court dismissed the case, concluding that

the drawing of Congressional districts was a

discharge of a duty and did not amount to a law:

making function. The Minnesota Supreme Court

affirmed the dismissal. This Court reviewed the

constitutionality of the legislation and reversed the

Minnesota Supreme Court.®? It held that pursuant

to Article I, § 4 of the United States Constitution,

Congressional district legislation is a law-making

function and that a Legislature did not have

authority to pass laws beyond what it was allowed

under its Constitution.**

a3 Td.

** 285 U.S. 355, (1932).

85 Baker 369 U.S. at 277-78: see also Holm. 285 US. 355

(1932).

5 =6Holm, 285 U.S. at 361-62.

87) Id. at 373.

te] Id

29

In 1932, in Wood v. Broom, this Court

reversed a Mississippi District Court which had

permanently enjoined state officials from proceeding

with a Congressional election under the state’s

redistricting act.** The District Court determined

that the districts were not composed of compact and

contiguous territory having, as nearly as practicable,

the same number of inhabitants, thus, violating the

Apportionment Act of 1911. This Court reviewed the

Apportionment Acts of 1911 and 1929 and held that

the districting requirements contained in previous

Apportionment Acts were intentionally excluded

from the 1929 Act and therefore no longer in force

and not applicable.” In Mahan v. Hume, in a per

curiam decision, this Court also reversed a similar

ruling by a Kentucky District Court concerning a

Kentucky redistricting act.

In Colegrove v. Green, decided in 1946, this

Court reviewed the dismissal of the case by the

District Court for the Northern District of Illinois.

The District Court, pursuant to Wood v. Broom, had

dismissed the complaint against state officials

seeking to restrain them from holding the November

1946 election under’ the existing I\linois

Congressional districting legislation.®? Illinois had

not passed a Congressional redistricting statute

since 1901. Appellants argued that the statute was

unconstitutional for violating the compactness and

89 Baker, 369 US. at 20"!

% Broom, 287 U.S. at 12.

91 287 U.S. 575 (1932).

% Colegrove, 328 U.S. at 550-51.

30

equal population requirements of the Apportionment

Act of 1911.%

This Court agreed that the case was properly

dismissed pursuant to Wood v. Broom's reasoning

that such matters should be dismissed for “want of

equity.”94 The Court concluded the Appellants were

simply asking the Court to go beyond what it was

competent to grant.®° The Court stated, “the remedy

for unfairness in [Congressional] districting is to

secure State Legislatures that will apportion

properly, or invoke the ample powers of Congress.”

In addition, the Court held that dismissal was

appropriate for lack of a sufficient federal question

in cases dealing with apportionment of districts of

smaller subdivisions of states.%’ The Court

determined that it lacked the power to fashion

equitable remedies to address political

gerrymandering of Congressional districts; however,

it did not address whether partisan gerrymanders

were ever justiciable, even though that was implied

by the ruling.

V. The Modern Era

The tradition of dismissing political

gerrymandering cases for lack of a_ substantial

% Jd

% Jd. at 561-52.

% Jd. at 552.

%6 Jd. at 556.

97 ~See e.g. Tedesco v. Orleans Par. Bd. of Supervisors, 339

U.S. 940 (1950) (affirming lower court’s dismissal for lack of

substantial federa) question on the claim that of the division of

a municipality into voting districts of unequal population was

unconstitutional).

31

federal question changed with this Court’s landmark

decision in Baker v. Carr.® In Tennessee, the state

Constitution required the General Assembly to

reapportion following each decennial census.%

However, the General Assembly failed to follow the

dictates of its own Constitution. In 1901, the

General Assembly passed an Apportionment Act,

and for the next sixty (60) years, it failed to pass any

reapportionment legislation.

Between 1901 and 1960, Tennessee

experienced substantial growth and

redistribution of her population. For

example, in 1900, the First Senatorial

district in upper east Tennessee had a

population of 86,328. The 18

Senatorial district im rural Middle

Tennessee had a population of 45,125.

By 1950, the 1* District had grown to

171,615, while the 18 District was

only 50,624,100

The urban districts were severely overpopulated and

the rural districts significantly underpopulated.

Moore County, home to the Jack Daniels Distillery,

had in 1960 a population of 2,340 and was entitled to

one representative. Rutherford County, suburban

Nashville, had a population of 25,316, and was also

only entitled to one representative.!°! By simple (but

* 389 U.S. 186 (1962).

% ‘TENN. CONST. art. II, § 4.

100 Michael W. Catalano, Aidd v McCanless: The Genesis of

Reapportionment Litigation In Tennessee. 44 Tennessee

Historical Quarterly No.1, 72, 74 (Spring 1985) (hereinafter

“Catalano”).

‘1 Baker, 382 U.S. at 255 (Clark, J. concurring).

32

intentional) inaction, the Tennessee General

Assembly was able to preserve rural domination of

the state House and Senate.

In 1955, Representative Maclin Davis of

Nashville introduced House Bill 136 of the 84

General Assembly, to reapportion the state.'°2 His

bill was soundly rejected by the rural dominated

Legislature. Davis filed suit in state court, arguing

that the state Constitution required the Legislature

to reapportion the state. While the trial court ruled

in favor of the Plaintiff, the suit was ultimately

rejected by the Tennessee Supreme Court under the

“political question” doctrine.!° This Court granted

certiorari but subsequently dismissed the petition, !°4

citing Colegrove v. Green and A derson v.

Jordan.)

The cause was then taken up by Shelby

County, Tennessee, the state’s most populous

county, and the one most aggrieved by the

malapportionment. Charles Baker, the Chairman of

the county legislative body, initiated suit in the

United States District Court for the Middle District

of Tennessee. That court rejected his challenge as

non-justiciable, leading to an appeal to this Court.

This Court held the issues to be justiciable and

remanded to the District Court.!°7

102 Catalano at 76.

103 Kidd v McCandless. 292 S.W. 2d 40 (Tenn. 1956).

04 252 U.S. 920 41956).

105 328 U.S. 549 (1946).

106 343 U.S. 912 (1952).

0? Baker, 369 U.S. at 237.

33

Decades of litigation from almost every state

followed the Baker decision. A Lexis-Nexis search

for political gerrymander cases nationally at all

levels reveals that from 1859 through 1962 (104

years), there are as many as 54 gerrymander cases.

From Baker in 1962 to Bandemer in 1986 (24 years),

there are as many as 137 cases. From Bandemer in

1986 through Vieth in 2004 (18 years), there are as

many as 95 cases; and from Vieth in 2004 through

today (13 years), there are as many as 104 cases.

VI. _—‘ Fruitless search for manageable standards

By establishing in Baker that redistricting

and reapportionment cases based on violations of the

traditional standards may be justiciable, the Court

invited a logical next step—cases asking whether

partisan gerrymandering is justiciable. In 1986, this

Court considered partisan gerrymandering in

Bandemer v. Davis.'% After the Republican-

controlled Indiana Legislature reapportioned

districts following the 1980 Census, Indiana

Democrats sued arguing that the new map was a

political gerrymander which disadvantaged

Democrats and thus violated the Equal Protection

Clause of the Fourteenth Amendment. While the

majority held political gerrymandering claims were

justiciable, the Court rejected the District Court's

standard for determining an equal protection

violation.

Justice White, writing for the plurality said:

“(Wle are not persuaded that there are no judicially

discernable and manageable standards” in partisan

08 478 U.S. 109 (1986).

34

gerrymandering cases.!°° Justice White proposed no

discernable standard, but only posited that

unconstitutional discrimination occurs when there is

“both intentional discrimination against an

identifiable political group and an _ actual

discriminatory effect on that group.”!'° These claims

were justiciable, he said, but there was no standard

to determine how much partisan gerrymandering is

unconstitutional.

Bandemer, in the words of Justice Scalia, sent

the lower courts “wandering in the wilderness” for

nearly two decades.''!' Without a consensus in this

Court on a manageable standard, the lower courts

faced partisan gerrymandering cases on an ad hoc

basis with little direction. Any fears that Bandemer

would open the floodgates to litigation were

unfounded, because the courts refused to address the

issue in the absence of real guidance.!!2

This Court avoided the partisan

gerrymandering issue during the 1990 redistricting

cycle, and between Bandemer and Vieth, only one

case of political gerrymandering arose in which a

court granted relief; Republican Party of North

Carolina v. Hunt) Hunt addressed North

Carolina’s method of electing its Supericr Court

Judges. The Fourth Circuit concluded that

Republican Superior Court judicial candidates—of

109 Jd. at 123.

310 Jd. at 127.

l Vieth, 541 U.S. at 303.

112) Jd. at 279.

13 Republican Party of N.C. v. Hunt, 1996 U.S. App. LEXIS

2029 (4th Cir. 1996).

35

which only one had been elected since 1900—

experienced a “pervasive lack of success and

exclusion from the electoral process as a whole.”!!*

Ironically, less than a week after the decision, all

Republican Superior Court judicial candidates won

their respective races under the very map that the

Court had declared an unconstitutional partisan

gerrymander.'!!5

The 2000 redistricting cycle provided the

Court's next opportunity to weigh in on political

gerrymandering and the search for a manageable

standard. The redistricting of Pennsylvania's

Congressional districts by the Republican-controlled

Legislature resulted in a challenge by Democrats.

The District Court held that the redrawn districts

were not an unconstitutional partisan gerrymander,

and the Democrats appealed. In Vieth v Jubilirer, a

plurality of this Court upheld the District Court’s

ruling.!!6

Three different standards were proposed in

Vieth, all of which the plurality rejected for one

reason or another:

Justice Stevens proposed using the racial

gerrymandering standard from the Shaw line of

cases, translating to the — standard for

unconstitutionality being that the only possible

explanation for the district’s shape was to advantage

one party over another.''? The plurality rejected this

theory, noting that, while race receives strict

114 Vieth, 541 U.S. at 287.

115 Jd. at 287, n.8.

116 Jd at 306.

117 Jd. at 323.

36

scrutiny under the Equal Protection Clause, partisan

affiliation does not require a heightened level of

scrutiny.!!8

Justices Souter and Ginsburg proposed a five

part test that would have shifted the burden to the

state to justify the drawing of its districts.14% The

plurality found that test inadequate because it did

nothing to help courts address Aow muchA partisan

gerrymandering constitutes unconstitutional

partisan gerrymandering. !2°

Justice Breyer proposed a “spectrum of indicia

of abuse” standard, laying out examples of “indicia of

abuse.”!2!_ The plurality dismissed this proposal

predicting, that the standard would produce future

litigation without any discernable, applicable

standard. !22

In LULAC vy. Perry,'*3 Texas Democrats

challenged a Republican-drawn, mid-decade

redistricting map as _ unconstitutional partisan

gerrymandering. The District Court rejected

Plaintiffs claims. While the case was on appeal to

this Court, the Vieth decision was issued. This

Court vacated the District Court’s order and

remanded for consideration in light of Vieth.124 On

remand, the District Court again rejected Plaintiffs

claims and Plaintiff again appealed to this Court.

116 Jd. at 339.

19 Td. at 351-52.

120 Id. at 297.

121 Id. at 365.

122 Jd. at 300-01.

123 §48 U.S. 399 (2006).

124 Jd. at 408.

37

The Court reviewed the District Court's second

opinion to consider whether the proposed standard

was a manageable standard for evaluating partisan

gerrymandering,'*® and found the proposed standard

lacking.

Building consensus around a standard with

which to judge the constitutionality of partisan

gerrymandering requires answering the question—

how much partisan gerrymandering is too much—a

daunting proposition no mathematical formula can

address. Mathematical formulas and social science

theories cannot determine what amount of partisan

gerrymandering is unconstitutional because, as the

Court has long’ recognized, some _ partisan

motivations behind drawing’ districts are

unavoidable and also constitutional.!26 After all,

“statistical models are not a_ substitute for

thinking.”!27 It is an inherently qualitative question.

It is an exercise in futility to attempt to gauge an

American political climate which is ever-changing

and anything but static.

None of the proposed standards in Bandemer,

Vieth or LULAC mustered a majority opinion. The

courts have wandered through the “political thicket”

in search of an elusive manageable standard for 55

years since Baker, 31 years since Bandemer, 13

years since Vieth, and 11 years since LULAC' —it

has yet to emerge. No standard can, in fact, emerge,

125 Jd. at 399.

126 Vieth, 541 U.S. at 281-83; 299.

127 Bill Henderson, /nnovation in Organizations, Part IT (Jul.

23, 2017), available at http://www.legalevolution.org/2017/07/

innovation-in-organizations-part-11-016/.

38

because, ultimately, the search for a standard is the

search for a quantitative answer to a qualitative

question.

The Court recognized this, at least tacitly, in

Evenwel v. Abbott,'28 which dealt with

reapportionment in a somewhat different context:

Whether the population of a district should be

measured by all inhabitants, or those eligible to vote,

so that the votes of persons in Texas Senate Districts

would have approximately the same weight. In her

opinion, Justice Ginsberg noted: “What

constitutional history and our prior decisions

strongly suggest, settled practice confirms. Adopting

voter-eligible apportionment as_ constitutional

command would upset a well-functioning approach

to districting that all 50 States and countless loca!

jurisdictions have followed for decades, even

centuries,” !29

Justice Thomas elaborated in his concurrence:

The Constitution does not prescribe any

one basis for apportionment within

States. it instead leaves States

significant leeway in apportioning their

own districts to equalize _ total

population, to equalize eligible voters,

or to promote any other principle

consistent with a republican form of

government. The majority should

recognize the futility of choosing only

one of these options. The Constitution

6 CUS. __, 136 S. Ct. 1120 (2016).

129 Jd. at 1132.

39

leaves the choice to the people alone --

not to this Court.'*

A fortior1, the United States Constitution does

not entitle any voter to be assigned to a legislative

district that consists of some made up ideal number

of like-minded voters, whether Democrat,

Republican, Libertarian, Green, or any other party

or interest group.

VII. Proportionality

Any standard other than the traditional and

long-articulated standards of compactness,

contiguity, equality of population, and communities

of interest, engages the courts in making political

determinations of the proper proportion of partisans

in the legislative branch. As Justice O'Conner said

in Bandemer: “It is predictable that the courts

[would] respond by moving away from the nebulous

standard a plurality of the Court fashions today and

toward some form of rough proportional

representation for all political groups.”!*!

Any such standard fundamentally changes the

nature of representation from a_ district-based

system of representation, to an ideological- and

partisan-based system. Rather than single-member

districts represented by members accountable to

voters therein, representation would be based on

arbitrary assignment to a partisan or ideological

numerator and a statewide denominator, with the

elected officials receptive on/y to that interest group.

130 Jd at 1133 (emphasis added).

131 Bandemer, 478 U.S. at 145.

40

Furthermore, such an approach is precluded

by this Court’s prior rulings. As Justice White said

in the plurality opinion in Bandemer “Our cases,

however, clearly foreclose any claim that the

Constitution requires proportional representation or

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.”!°2 As noted

by Justice Kennedy in Vieth: “There is no authority

for this precept.”!53

The standard advanced by the law professors

in the court below simply ignores reality. It requires

a judge to assign individuals to legislative districts

based on the judge’s calculation of the number of

like-minded voters in a geographic area, so that none

of their votes are “wasted.” It is naive to assume

that people's reasons for voting for a given candidate

are all the same, and never vary from election to

election. It ignores the fact that many voters split

their tickets. It fails to take into account

independent voters, voters loyal to smaller parties

(such as the Libertarian Party or the Green Party),

or voters who do not vote in every election, or in

every race on a_e given ballot. It gives no

consideration to intangible qualities possessed by

candidates, or major issues and events that may

sweep in and cause voters to vote against their

custom. It simply fails to consider that political

132 Jd. at 130.

133° Vieth, 541 US. at 308. (Kennedy, J. concurring).

41

winds shift and the pendulum swings back and

forth. !34

In short, the methodology advocated in the

court below is unworkable in the real world, for

either legislators or the courts. The best standards

of constitutionality are the traditional, common

standards, e.g., compactness, contiguity, preserving

natural and local government boundaries, and

equality of population. These already provide

Legislatures and courts more than enough factors to

balance, without additional nebulous and artificial

hair-splitting.'*

CONCLUSION

Gerrymandering has been with us from the

founding of the Republic. For over two centuries,

there have been complaints made and solutions

proposed and tried, yet the creature remains with

us. Some gerrymanders have worked, and others

have failed. Some solutions have worked, some have

failed. The challengers in this case are only

disgruntled because they are not the ones holding

the power of the majority at the moment.

In the 55 years since Baker and the 32 years

since Bandemer, the courts have struggled to find a

manageable standard and have failed to do so,

because no standard exists. The so-called efficiency

gap is only the latest mathematical fad championed

in the cause of curing gerrymanders. It suffers from

134 SEAN TRENDE, THE LOST MAJorITY (Palgrave McMillen

2012).

135 See, State ex rel. Lockert v. Crowell, 631 S.W.2d 702 (Tenn.

1982).

42

the same fundamental defect as all others: It is an

arithmetic fig leaf for proportional representation.

This Court has noted that “representatives don't

represent trees or cows, but people.”!% A

proportionality approach relegates representation to

an ideological construct, rather than _ the

representation of actual people.

The Court should hold that the traditional

standards, reflected in the Apportionment Acts, are

a sufficient curb to gerrymandering, reverse the

decision of the court below, and uphold Wisconsin’s

redistricting plan.

Respectfully Submitted,

John L. Ryder

Counsel of Record

Pablo Adrian Varela

Harris Shelton Hanover

Walsh, PLLC

40 South Main Street,

Suite 2700

Memphis, Tennessee 38103

901.545.1455

irvder@harrisshelton.com

Linda Carver Whitlow Knight

Gullett Sanford Robinson

& Martin, PLLC

150 Third Avenue South,

Suite 1700

Nashville, TN 37201

615.244.4994

186 Reynolds, 377 U.S. at 562.

43

lknight@gsrm.com

Counsel for Amici Curiae

August 3, 2017