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

| FILED

AUG - 4 2017

No. 16-1161 REPRE EECA

In the Supreme Court of the United States

BEVERLY R. GILL, ET AL., APPELLANTS

Vv.

WILLIAM WHITFORD, ET AL., APPELLEES

ON APPBAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF FOR THE STATES OF TEXAS,

INDIANA, KANSAS, aes GEORGIA,

INDIAN LOUISIANA. Bt ICHIGAN,

MISSO OHIO, O OM

SOUTH CARO an AND WEST VIRGINIA

AS AMICI CURIAE RT OF APPELLANTS

KEN PAXTON Scott A. KELLER

Attorney General of Texas Solicitor General

Counsel of Record

JEFFREY C. MATEER

First Assistant Attorney § MATTHEW H. FREDERICK

General Deputy Solicitor General

KRISTOFER S. MONSON

Assistant Solicitor Genera!

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

texas. gov

(512) 936-1700

TABLE OF CONTENTS

Page

III. ..10..nscasiceeiinenabpecnniennnnimanaieidiats 1

SII rs cenersnnatcensatenennemiaeneninnmanmiantinte 2

Fe incertiniendeenicoiiacentnunieininginartansieepnuinsrnamnmniinientatiote 3

I. Legislatures do not act invidiously or irration-

ally, under the Equal Protection Clause, when

they reapportion with a partisan purpose. .......... 4

A. Partisan-gerrymandering claims require

showing that a legislature acted with an

invidious or irrational purpose. ..................... 4

B. Partisan purposes are inherent in

legislature-controlled redistricting, and

there is nothing invidious or irrational

GOW SUE PUTPOBGB, coccccccccecccsccscsccssccnscesseccese0s 7

C. The presumptions of constitutionality and

good faith for government actions,

combined with the many traditional

purposes inherent in any reapportionment,

make it incredibly difficult—if not imposs-

ible—to show invidious partisan purpose. ..... 9

D. The district court did not apply a

presumption of constitutionality and good

faith, and it contravened this Court’s

precedent by equating partisan purpose

WHERE MBVEEIOUS BROGI, .ccccecccccccccccococcesccsccecscesees 13

IL Neither the district court’s nor plaintiffs’ test

presents judicially discoverable and manage-

able standards for determining when a

reapportionment has an invidious partisan

(T)

II

A. The district court improperly relied on a

theory of group—rather than individual—

rights, which leads to a proportional-

representation standard already rejected

Ba EL cxtsserniscnennsinensndeneunpninsnsapenansanstnsonee 17

B. Plaintiffs’ proposed “efficiency-gap” test

does not provide a judicially manageable

el chirctenttmactituanenttnnitdineemnnasimmmnnmatenn 23

I ciciesinrisiendticininiensccntccrnntientiiutereenmmmnmmemannmnigatmmentis 28

TABLE OF AUTHORITIES

Cases:

Adarand Constructors, Inc. v. Pena,

TESTES Se aE a ES 17

Baker v. Carr,

SEER 4

Baumgart v. Wendelberger,

Nos. 01-C-0121, 02-C-0366, 2002 WL 34127471

gS 24

Buckley v. Valeo,

eo 5

Burns v. Richardson,

a asia i)

Cal. Democratic Party v. Jones,

i sceuhmiemsennlinsianinatih 5

Chapman v. Meier,

ee 1,14

City of Columbia v. Omni Outdoor Advert., Inc.,

TEE a 10

City of Mobile v. Bolden,

i nrierrneneneseasniemimnnsiiintietl 6, 8, 21

It!

Davis v. Bandemer,

RE i eee 7, 22

Evenwel v. Abbott,

i onan 12

Flemming v. Nestor,

RAT ee ee ee ee 11

Fletcher v. Peck,

SEALE ET RA ENTE ae 10, 11

Gaffney v. Cummings,

| 1, 5, 7, 8, 9, 18

Growe v. Emison,

ET EE tne ee 1,7

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

EE SE I TCC 15

Karcher v. Daggett,

I ein 7,8

LULAC ». Perry,

548 U.S. 399 (2006) ............cccccccecseee 14, 15, 17, 21, 23, 24

McCleskey v. Kemp,

iets 11

McGowan v. Maryland,

ERS eS en RT 6

Miller v. Johnson,

Be III... cccccasssnssansssuengenentnaie 7, 9, 10, 13, 14

Palmer v. Thompson,

TEE TE a emer 16

Perry v. Perez,

I sie 7

Pers. Adm’r of Mass. v. Feeney,

ce ..6, 11

Reno v. Bossier Par. Sch. Bd.,

SD ees SE CUD cenccnsccsccecevecesecnnsezsssnsscnaqnsgnenscenectstoneess 6

Reynolds v. Sims,

I ae cieieaininial 18

Rogers v. Lodge,

TET EE = 5, 6, 8

Shaw v. Hunt,

ci csemneinsaionaiien 17

Shaw v. Reno,

EES EERE Ne ann nee oe 7,12

Smith v. Doe,

TS 11

Sunday Lake Iron Co. v. Wakefield Twp.,

RRR ERE ne 10

Tenney v. Brandhove,

EE aT 12

U.S. Dep’t of Labor v. Triplett,

sina ees cterrenrnenmiantenenininh 10

United States v. Chem. Found., Inc.,

ERE EE 10

Vieth v. Jubelirer,

ESE ae ace ae passim

Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252 (1977) ...........+.. 10, 11, 12, 14, 15, 27

Washington v. Davis,

TERE a ne aD TE 6, 8, 11

Whitcomb v. Chavis,

Ss 5, 18, 19, 21

Constitutional] provisions:

TET ee ane ene aE ee 5, 6

TT vas nrneeetleetnaseennmniciintinmiasintindh 17

RIG ectsiticenannnsisnscvicncteniciatensiaeioni passim

Miscellaneous:

Paul A. Diller, Reorienting Home Rule: Part 1—

The Urban Disadvantage in National and

State Lawmaking, 77 La. L. Rev. 287 (2016)............ 19

Daniel H. Lowenstein & Jonathan Steinberg, The

Quest for Legislative Districting in the Public

Interest: Elusive or Illusory? 33 UCLA L.

BE Ce iniccnttnniecuemnesanninineiiaindiinnisinmecensemnncese 13

Nicholas Stephanopoulos & Eric McGhee,

Partisan Gerrymandering and the Efficiency

Gap, 82 U. Chi. L. Rev. 881 (2015) ............ccccceseee 23, 24

INTEREST OF AMICI CURIAE

Amici curiae are the States of Texas, Alabama,

Arizona, Arkansas, Georgia, Indiana, Kansas,

Louisiana, Michigan, Missouri, Nevada, Ohio,

Oklahoma, South Carolina, Utah, and West Virginia.

The States have a vital interest in the rules that govern

apportionment of seats for state legislative bodies and

the United States House of Representatives. This Court

has repeatedly held that “reapportionment is primarily

the duty and responsibility of the State through its

legislature or other body, rather than of a federal

court.” Growe v. Emison, 507 U.S. 25, 34 (19938)

(quoting Chapman v. Meier, 420 U.S. 1, 27 (1975)).

And the Court has recognized that reapportionment

by state legislatures is an inherently political task. See,

e.g., Gaffney v. Cummings, 412 U.S. 735, 749 (1973).

The Court has never held that a State violates the Con-

stitution by pursuing or achieving political goals

through reapportionment.

Yet in this case, the district court held that Wiscon-

sin violated the Constitution when it passed Act 43, the

reapportionment plan for its Assembly and Senate, be-

cause that plan was purportedly an unlawful partisan

gerrymander. The district court’s decision invites open-

ly partisan policy battles in the courtroom. This will ex-

pose every State to litigation under a legal standard so

indeterminate that any party that loses in the legisla-

ture has a plausible chance of overriding that policy de-

cision in the courts. The Constitution does not support,

let alone compel, this result.

(1)

2

SUMMARY OF ARGUMENT

Plaintiffs’ expert in this case concluded that the

proposed partisan-gerrymandering standard offered by

plaintiffs would have invalidated a redistricting plan in

36 States over the past few decades. That includes

States across the country, from Alabama to Washing-

ton, California to New York, and from Massachusetts to

South Carolina. See infra pp.25-26. Plaintiffs thus pro-

pose nothing short of a paradigm shift in how legisla-

tures and courts approach redistricting.

Yet this Court has repeatedly recognized that legis-

lative reapportionment is an inherently partisan task.

Partisan purpose is thus inherent in the nature of legis-

lative reapportionment. There is nothing invidious or

irrational, under the Equal Protection Clause, about

legislatures having partisan purposes when reappor-

tioning legislative seats.

Furthermore, the district court’s indeterminate

standard does not draw a manageable line between

permissible and impermissible partisan purpose and

effects. This Court has made clear that partisan-

gerrymandering claims are not cognizable based on a

measure of proportional representation between the

statewide votes and seats obtained by a political party.

See infra pp.21-22. Nevertheless, the split decision of

the district court here recognized such a partisan-

gerrymandering claim under an amorphous test—based

on a metric of proportional representation—that could

be used to threaten countless state legislative reappor-

tionment plans. At base, the district court’s reliance on

vote-dilution cases misunderstands the difference be-

tween those claims regarding individual rights versus

the novel group-based right recognized by the district

court.

3

The district court infused proportional representa-

tion into its analysis by relying on plaintiffs’ “efficiency

gap” analysis as “corroborative evidence” of the effec-

tiveness of the declared partisan intent. But this effi-

ciency gap analysis—which calculates a percentage

based on the number of “wasted” votes (that is, votes

for the winning candidate beyond the 50% margin

needed for victory plus any votes for losing candidates)

divided by the total number of votes in the election—

measures nothing meaningful in the real world of a giv-

en district. The efficiency-gap calculation is just de-

signed to achieve a particular type of proportional polit-

ical outcome. Given the Court’s longstanding rejection

of proportional representation, it should not now adopt

a mathematical formula that would require courts to

ensure certain political outcomes for every state legisla-

ture in every redistricting cycle.

ARGUMENT

This Court has repeatedly recognized a widely

known fact: Politics is, and always has been, a part of

redistricting. Far from being invidious or irrational, po-

litical competition is a necessary component of legisla-

tive-controlled redistricting. The district court funda-

mentally misunderstood this Court’s Equal Protection

Clause precedent, which requires a showing of invidious

or irrational purpose—and one that overcomes the

strong presumption of constitutionality and good faith

accorded to legislative acts.

Worse yet, the district court’s test for sustaining a

partisan-gerrymandering claim rests on an untenable

assumption that redistricting plans should produce pro-

portional representation. Moreover, plaintiffs’ proposed

standard would have invalidated redistricting plans in

36 States over the past few decades. Thus, far from

4

eliminating politics from redistricting, the district

court’s test would shift political battles from the

statehouse to the courthouse.

L Legislatures Do Not Act Invidiously or Irration-

ally, Under the Equal Protection Clause, When

They Reapportion With a Partisan Purpose.

Legislatures do not act invidiously or irrationally

when they reapportion with a partisan purpose. And the

Court has recognized numerous times that partisan pol-

itics are inherent in the nature of legislative-controlled

reapportionment. This fatally undermines the existence

of partisan-gerrymandering claims.'

A. Partisan-gerrymandering claims require show-

ing that a legislature acted with an invidious

or irrational purpose.

A claim of unconstitutional partisan gerrymandering

is an allegation, under the Equal Protection Clause,

that a legislature has acted with an invidious or irra-

tional purpose. See, e.g., Vieth v. Jubelirer, 541 U.S.

267, 307 (2004) (Kennedy, J., concurring in the judg-

' The Court can therefore hold that partisan-gerrymandering

claims are not cognizable under the Equal Protection Clause—

wholly apart from any potential application of the political-

question doctrine’s limits on Article III jurisdiction. That said,

the political-question doctrine would independently bar partisan-

gerrymandering claims. Partisan concerns are a constitutionally

appropriate element in the redistricting process, so any parti-

san-gerrymandering standard triggered by the degree of parti-

san interest motivating the plan can have no predictable limiting

principle and is, at base, a question for the political branches.

E.g., Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that,

among other things, the “lack of judicially discoverable and

manageable standards” for resolving a dispute make it a political

question, outside the Judiciary’s power).

5

ment) (a partisan-gerrymandering claim alleges that

“political classifications . . . were applied in an invidious

manner or in a way unrelated to any legitimate legisla-

tive objective”); see also Whitcomb v. Chavis, 403 U.S.

124, 155 (1971) (“it would not follow that the Fourteenth

Amendment had been violated unless [the law] is invidi-

ously discriminatory”); Gaffney, 412 U.S. at 754 (redis-

tricting plan may be unconstitutional if political group is

“fenced out of the political process and their voting

strength invidiously minimized”).

Because a partisan-gerrymandering challenge to a

redistricting plan must allege invidious action, it is

“subject to the standard of proof generally applicable to

Equal Protection Clause cases.”* Rogers v. Lodge, 458

* As support for treating partisan intent as invidious, the dis-

trict court invoked the First Amendment’s freedom-of-

association principle and cases related to the ability of groups to

speak. J.S. App. 109a (analyzing plaintiffs’ claim under combina-

tion of associational rights and Equal Protection jurisprudence);

J.S. App. 176a-77a (concluding that the associational rights of

members of the Democratic Party were impaired because they

could not transform their votes into electoral results); J.S. App.

226a (concluding that individual plaintiffs had standing to pre-

sent harm to Democratic Party). However, partisan intent is

necessarily behind the exact type of speech and association in-

herent in political parties speaking and their members voting

during elections. £.g., Vieth, 541 U.S. at 313-14 (Kennedy, J.,

concurring in the judgment) (a “[rjepresentative democracy .. .

is unimaginable without the ability of citizens to band together

in promoting among the electorate candidates who espouse their

political views” (quoting Cal. Democratic Party v. Jones, 530

U.S. 567, 574 (2000)). The Court has long declined to take a role

in elevating any particular partisan message or outcome in the

election process. E.g., Buckley v. Valeo, 424 U.S. 1, 57 (1976)

(per curiam) (“The First Amendment denies government the

power to determine that spending to promote one's political

views is wasteful, excessive, or unwise.”). And it has always de-

scribed the First Amendment as providing access to the political

6

U.S. 618, 617 (1982). The Equal Protection Clause does

not forbid state action that merely affects some individ-

uals differently than others. E.g., McGowan v. Mary-

land, 366 U.S. 420, 425 (1961); see also Pers. Adon'r of

Mass. v. Feeney, 442 U.S. 256, 273 (1979) (“[T]he Four-

teenth Amendment guarantees equal laws, not equal

results.”). A claim of mere disparate effect does not vio-

late the Equal Protection Clause. Washington v. Davis,

426 U.S. 229, 240 (1976); see Reno v. Bossier Par. Sch.

Bd., 520 U.S. 471, 481 (1997) (citing City of Mobile v.

Bolden, 446 U.S. 55, 62 (1980) (plurality op.)).

Plaintiffs’ obligation to prove invidious purpose,

therefore, “is simply one aspect of the basic principle

that only if there is purposeful discrimination can there

be a violation of the Equal Protection Clause of the

Fourteenth Amendment.” Rogers, 458 U.S. at 619

(quoting Bolden, 446 U.S. at 66 (plurality op.)).

process, not a right to particular partisan outcomes. £.g., id.

(“In the free society ordained by our Constitution it is not the

government, but the people individually as citizens and candi-

dates and collectively as associations and political committees

who must retain control over the quantity and range of debate

on public issues in a political campaign.”). At any rate, as ex-

plained below, see infra Part II, the tests advanced in this case

do not present the “pragmatic or functional” test that would be

required to administer a First Amendment regime tied to the

election outcomes for the political parties. Vieth, 541 U.S. at 315

(Kennedy, J., concurring in the judgment).

7

B. Partisan purposes are inherent in legisla-

ture-controlled redistricting, and there is

nothing invidious or irrational about such

purposes.

This Court has said time after time that partisan

purposes are inherent in redistricting, for example:

* “Politics and political considerations are insepa-

rable from districting and apportionment.”

Gaffney, 412 U.S. at 753.

« “In the reapportionment context, the Court has

required federal judges to defer consideration of

disputes involving redistricting where the State,

through its legislative or judicial branch, has be-

gun to address that highly political task itself.”

Growe, 507 U.S. at 33.

- “{Rjedistricting in most cases will implicate a po-

litical calculus in which various interests compete

for recognition.” Miller v. Johnson, 515 U.S. 900,

914 (1995).

¢ Redistricting “ordinarily involves criteria and

standards that have been weighed and evaluated

by the elected branches in the exercise of their

political judgment.” Perry v. Perez, 565 U.S. 388,

393 (2012) (per curiam).*

® See also Vieth, 541 U.S. at 285 (plurality op.) (“The Constitu-

tion clearly contemplates districting by political entities ... and

unsurprisingly that turns out to be root-and-branch a matter of

politics.”); Shaw v. Reno, 509 U.S. 630, 662 (1993) (White, J., dis-

senting) (“[D]istricting inevitably is the expression of interest

group politics . . .”); Davis v. Bandemer, 478 U.S. 109, 129 (1986)

(plurality op.) (“As long as redistricting is done by a legislature,

it should not be very difficult to prove that the likely political

consequences of the reapportionment were intended.”); Karcher

8

Consequently, the fact that a legislature reappor-

tioned with a partisan purpose is not evidence that the

legislature acted invidiously or irrationally. See, e.g.,

Vieth, 541 U.S. at 313 (Kennedy, J., concurring in the

judgment) (“({AJppellants’ evidence at best demon-

strates only that the legislature adopted political classi-

fications. That describes no constitutional flaw... .”).

In contrast, when a legislature acts with a purpose

to create a racial classification, for example, that pur-

pose itself is invidiously suspect.* But there is nothing

inherently suspect, invidious, or irrational about a legis-

lature using a partisan purpose when redistricting. Sec

Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the

judgment) (“Race is an impermissible classification.

Politics is quite a different matter.” (citation omitted)).

This Court’s precedent establishes that partisanship

and entrenchment are not invidious purposes—and for

good reason. For example, bipartisan gerrymanders,

which often favor incumbent legislators of both parties,

are permissible. See Gaffney, 412 U.S. 735 (holding that

a redistricting plan drawn by a bipartisan commission

along political lines was not invidiously discriminatory);

v. Daggett, 462 U.S. 725, 763 (1983) (Stevens, J., concurring)

(“Legislators are, after all politicians; it is unrealistic to attempt

to proscribe all political considerations in the essentially political

process of redistricting.”).

* See Rogers, 458 U.S. at 617 (“{I)n order for the Equal Protec-

tion Clause to be violated, ‘the invidious quality of a law claimed

to be racially discriminatory must ultimately be traced to a ra-

cially discriminatory purpose.” (quoting Washinglon v. Davis,

426 U.S. at 240)); Bolden, 446 U.S. at 66 (plurality op.) (“We

have recognized, however, that such legislative apportionments

could violate the Fourteenth Amendment if their purpose were

invidiously to minimize or cancel out the voting potential of ra-

cial or ethnic minorities.”).

9

Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966) (“The

fact that district boundaries may have been drawn in a

way that minimizes the number of contests between

present incumbents does not in and of itself establish

invidiousness.”). Such gerrymanders are just as likely

to involve both an “injection of politics,” Vieth, 541 U.S.

at 293 (plurality op.), and an “intent to entrench” those

who control the process, J.S. App. 117a. But neither vio-

lates equal protection: “[t]he very essence of districting

is to produce a different—a more ‘politically fair’—

result than would be reached with elections at large, in

which the winning party would take 100% of the legisla-

tive seats.” Gaffney, 412 U.S. at 753.

Determining what is “politically fair” is a task left to

the States to resolve through the political process. See,

e.g., Miller, 515 U.S. at 915 (“Electoral districting is a

most difficult subject for legislatures, and so the States

must have discretion to exercise the political judgment

necessary to balance competing interests.”).

C. The presumptions of constitutionality and

good faith for government actions, combined

with the many traditional purposes inherent

in any reapportionment, make it incredibly

difficult—if not impossible—to show invidi-

ous partisan purpose.

Even if the Court were to entertain the possibility

that a drastic, specific type of partisan purpose could

possibly rise to the level of invidious or irrational intent,

it would be very difficult—if not impossible—to sustain

such a claim. This Court’s established precedent makes

clear that any unlawful-purpose analysis requires “ex-

traordinary caution” and faces an exacting standard: it

requires the clearest proof of invidious purpose in light

of the heavy presumptions of constitutionality and good

10

faith accorded to government actions. See, e.g., Miller,

515 U.S. at 916 (recognizing a “presumption of good

faith that must be accorded legislative enactments, re-

quir{ing] courts to exercise extraordinary caution in ad-

judicating claims that a State has [engaged in invidious-

ly-motivated action]”). Plus, any redistricting plan will

necessarily involve traditional, legitimate reapportion-

ment purposes—including compliance with the one-

person, one-vote doctrine, which already significantly

cabins the ability of legislatures to engage in excessive

partisan gerrymanders.

1. The exacting standard for invidious-purpose chal-

lenges to government action is just one application of

the Court’s general recognition that government action

is presumed valid, e.g., Sunday Lake Iron Co. v. Wake-

field Twp., 247 U.S. 350, 353 (1918); that government

actors are presumed to act in “good faith,” Miller, 515

U.S. at 916; and that a “presumption of regularity” at-

taches to official government action, United States v.

Chem. Found., Inc., 272 U.S. 1, 14-15 (1926). These doc-

trines create a “heavy presumption of constitutionality.”

U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 721 (1990).

This Court, therefore, “has recognized, ever since

Fleteher v. Peck, (6 Cranch 87, 130-31 (1810),] that judi-

cial inquiries into legislative or executive motivation

represent a substantial intrusion into the workings of

other branches of government.” Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268

n.18 (1977). So the Court has permitted an unlawful-

purpose analysis of government action in only a “very

limited and well-defined class of cases.” City of Colum-

bia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 377 n.6

(1991).

Even when it has permitted an unlawful-purpose

analysis of government action, the Court has

1]

concomitantly stated that any such analysis proceeds

under an exacting standard. As Chief Justice Marshall

explained over two centuries ago in Fletcher,

government action can be declared unconstitutional

only upon a “clear and strong” showing, 6 Cranch at

128.

The Court has thus explained, in various contexts,

that only clear proof of unlawful purpose can allow

courts to override facially neutral government actions.

For example:

¢ When there are “legitimate reasons” for govern-

ment action, courts “will not infer a discriminato-

ry purpose.” McCleskey v. Kemp, 481 U.S. 279,

298-99 (1987) (rejecting equal-protection claim).

« A law’s impact does not permit “the inference

that the statute is but a pretext” when the classi-

fication drawn by a law “has always been neu-

tral” as to a protected status, and the law is “not

a law that can plausibly be explained only as a

[suspect class]-based classification.” Feeney, 442

U.S. at 272, 275 (1979) (rejecting equal-

protection claim); see Arlington Heights, 429

U.S. at 269-71; Washington v. Davis, 426 U.S. at

245-48

e Only the “clearest proof” will suffice to override

the stated intent of government action, to which

courts “defer.” Smith v. Doe, 588 U.S. 84, 92

(2003) (rejecting ex-post-facto claim); see Flem-

ming v. Nestor, 363 U.S. 603, 617 (1960) (citing

Fletcher, 6 Cranch at 128).

This exacting standard for an unlawful-purpose

challenge to facially neutral government action exists

for good reason. It keeps a purpose inquiry judicial in

nature, safeguarding against a devolution into policy-

12

based reasoning that elevates views about a perceived

lack of policy merit into findings of illicit purpose. Even

when an official adopts a different policy after criticism

of an earlier proposal, critics can be quick to perceive

an illicit purpose when they disagree with the final poli-

cy issued. See Tenney v. Brandhove, 341 U.S. 367, 378

(1951) (“In times of political passion, dishonest or vin-

dictive motives are readily attributed ... and as readily

believed.”). The clearest-proof standard helps keep the

Judiciary above that political fray.

2. The fact that reapportionment will always neces-

sarily involve traditional redistricting motives in addi-

tion to partisan motives also significantly undermines

any allegation of invidious partisan gerrymandering.

Legislatures in charge of redistricting operate un-

der a “broad mandate,” and their decisions are rarely

“motivated solely by a single concern.” Arlington

Heights, 429 U.S. at 265. Thus, while partisan ad-

vantage is ever present, it is never a legislature’s sole

concern in redistricting. Many other traditional, legiti-

mate factors figure into decisions to draw district

boundaries in a certain way, such as “compactness, con-

tiguity, and respect for political subdivisions.” Shaw v.

Reno, 509 U.S. at 647.

Importantly, the one-person, one-vote doctrine also

significantly cabins the ability of legislatures to rely ex-

cessively on partisan purpose. By requiring districts of

nearly equal population, legislatures are already limited

in how they can use partisan purpose in reapportion-

ment. See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120, 1124

(2016) (“Over the ensuing decades, the Court has sever-

al times elaborated on the scope of the one-person, one-

vote rule.”).

When weighing all these traditional reapportion-

ment criteria, politicians’ attention naturally gravitates

13

towards the “the location and shape of districts [that]

may well determine the political complexion of the ar-

ea,” Gaffney, 412 U.S. at 753, and affect their chances of

reelection or the probability that their favored legisla-

tion will pass. Voters expect no less. See Daniel H.

Lowenstein & Jonathan Steinberg, The Quest for Legis-

lative Districting in the Public Interest: Elusive or /l-

lusory? 33 UCLA L. Rev. 1, 74 (1985) (“[W]hat . . . mat-

ters to almost all Americans when district lines are

drawn, is how the fortunes of the parties and the poli-

cies of the parties stand for are affected. When such

things are at stake there is no neutrality. There is only

political contest.”).

D. The district court did not apply a presump-

tion of constitutionality and good faith, and

it contravened this Court’s precedent by equat-

ing partisan purpose with invidious intent.

Rather than apply a presumption of constitutionality

and good faith while exercising “extraordinary caution,”

Miller, 515 U.S. at 916, the district court did the oppo-

site. It ignored this Court’s precedent by finding invidi-

ous purpose based on the reapportionment drafters’ ex-

pressed partisan purpose in redistricting. F.g., J.S.

App. 126a (purpose of plan was to “secure the Republi-

can Party’s control of the state legislature for the de-

cennial period”); J.S. App. 126a-36a (drafters consid-

ered partisan data to predict outcome); J.S. App. 139a

(drafters considered partisan effects and “durability” of

their plan). Evidence of partisan purpose is not evi-

dence of invidious intent. See supra Part 1.B. But under

the district court’s approach, any effort to secure a

marginal partisan advantage might qualify as prohibit-

ed invidious discrimination.

14

Problematically, the district court shifted the bur-

den to Wisconsin to provide a non-partisan rationale for

its redistricting, essentially treating partisan motive as

invidiously suspect. Requiring that States minimize the

partisan effects of redistricting—and tasking courts

with ensuring that they do—invites massive judicial in-

tervention in the redistricting process and draws courts

further into the “political thicket” than this Court’s ap-

portionment jurisprudence has ever envisioned: “Fed-

eral-court review of districting legislation represents a

serious intrusion on the most vital of local functions.”

Miller, 515 U.S. at 915. And redistricting is a “duty and

responsibility of the State through its legislature.”

Chapman, 420 U.S. at 27. Pervasive judicial involve-

ment is “unwelcome,” from the perspective of both the

States and the courts, because decennial reapportion-

ment “is one of the most significant acts a State can

perform to ensure citizen participation in republican

self-governance.” LULAC v. Perry, 548 U.S. 399, 416

(2006) (plurality op.).

Nor would the States find any comfort in “a

sensitive inquiry into such circumstantial and direct

evidence of intent as may be available.” J.S. App. 123a

(quoting Arlington Heights, 429 U.S. at 266).

Circumstantial evidence—and likely direct evidence—

will presumably abound with indicators of political

motive. See, e.g., Vieth, 541 U.S. at 347-50 (Souter, J.,

dissenting) (“[UJnder a plan devised by a single major

party, proving intent should not be hard, . . . politicians

not being politically disinterested or characteristically

naive.”). And the “components of the analysis” under

Arlington Heights, JS. App. 17la, are not necessary

elements of any claim; they are merely circumstantial-

evidence “subjects of proper inquiry” that can be

analyzed to determine whether the independent

15

elements of the underlying claim are satisfied. 429 U.S.

at 268.

Contrary to the district court’s suggestion, court- or

commission-drawn plans will also be subject to exten-

sive litigation. A recent case before this Court proves

that claims of partisan gerrymandering will not “stall,”

J.S. App. 17la, merely because a court or commission

drew the challenged plan, see Harris v. Ariz. Indep.

Redistricting Comm’n, 136 8. Ct. 1301, 1807 (2016) (re-

jecting claim that deviations from population equality

resulted from the redistricting commission’s “political

efforts to help the Democratic Party”).

Il. Neither the District Court’s nor Plaintiffs’ Test

Presents Judicially Discoverable and Managea-

ble Standards for Determining When a Reappor-

tionment Has an Invidious Partisan Purpose or

Sufficiently Burdens Representational Rights.

Even assuming that the Court determined that a

drastic, specific type of partisan purpose in redistricting

is invidious, the Court would still need to fashion a

manageable standard for (1) distinguishing that specific

type of invidious partisan purpose from legitimate par-

tisan purposes, and (2) determining when a redistrict-

ing plan has a sufficient discriminatory effect or burden

on representational rights. After all, as with any Equal

Protection Clause claim based on an invidious purpose,

a challenger must show not only invidious purpose but

also a discriminatory effect—which would be an uncon-

stitutional cognizable burden on representational rights

in a partisan-gerrymandering claim. See, e.g., LULAC,

548 U.S. at 418 (plurality op.) (“{A] successful claim at-

tempting to identify unconstitutional acts of partisan

gerrymandering must... show a burden, as measured

by a reliable standard, on the complainants’ representa-

16

tional rights.”); Palmer v. Thompson, 403 U.S. 217, 224

(1971) (“[N]o case in this Court has held that a legisla-

tive act may violate equal protection solely because of

the motivations of the men who voted for it.”).

Neither the district court nor the plaintiffs have

come close to demonstrating the existence of managea-

ble standards for partisan-gerrymandering claims that

overcome the strong presumption of constitutionality

and good faith applicable here. As Wisconsin notes, the

district court adopted an “entrenchment” test. See, e.g.,

Appellants’ Br. 20-21, 53-59. But Vieth already rejected

party entrenchment as a manageable partisan-

gerrymandering standard, and not even plaintiffs have

defended the district court’s entrenchment test. See id.

at 53-54.

This brief therefore will address portions of the dis-

trict court’s analysis that plaintiffs might try to sepa-

rate from the district court’s entrenchment test. The

district court’s analysis of partisan effect relied on a

theory of group rights never recognized by this Court,

and that theory in turn compels a test requiring a form

of proportional representation. See infra Part II.A. But

this Court has rejected proportional representation as a

manageable standard for partisan-gerrymandering

claims. See infra pp.21-22. The plaintiffs’ proposed

test—based on the so-called “efficiency gap”—fares no

better. See infra Part II.B. Far from a meaningful

measure of excessive partisan purpose, plaintiffs’ test is

essentially a mathematical repackaging of a proportion-

al-representation standard.

17

A. The district court improperly relied on a theo-

ry of group—rather than individual—rights,

which leads to a proportional-representation

standard already rejected by this Court.

1. The district court’s opinion morphed the plain-

tiffs’ individual rights against vote dilution into a group

entitlement to a certain degree of statewide political

power, contrary to this Court’s precedent. Although the

district court claimed that “one-person, one-vote and

vote dilution cases provide the foundation for evaluating

claims of political gerrymandering,” J.S. App. 78a, the

court’s basis for recognizing the plaintiffs’ claims was

the perceived impediment of the “ability of Democrats

to translate their votes to seats,” J.S. App. 79a. This

analysis of statewide vote and seat totals focuses on the

collective ability of groups to secure a “fair” level of

representation in the legislature, rather than on the di-

lution of individuals’ votes.

Yet, as this Court has long recognized, “the right to

an undiluted vote does not belong to the ‘minority as a

group’ but rather to ‘its individual members.” LULAC,

548 U.S. at 437 (plurality op.) (quoting Shaw v. Hunt,

517 U.S. 899, 917 (1996)); see also Adarand Construc-

tors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“(Tyhe Fifth

and Fourteenth Amendments to the Constitution pro-

tect persons, not groups.”).

Specifically, the district court concluded that the

Wisconsin redistricting plan’s tendency to produce elec-

toral results favoring Republicans constituted a dilution

of plaintiffs’ vote, reasoning that the ability of plaintiffs

to “secur[e] a political voice depends on the efficacy of

the votes of Democrats statewide.” J.S. App. 226a. The

district court did not consider the electoral history of

the plaintiffs’ districts, their voting history, or pre-

18

ferred candidates, and the court entirely avoided an in-

quiry into whether any of the plaintiffs’ individual

votes were somehow invidiously diluted. Instead, the

district court evaluated “the ability of voters of a cer-

tain political persuasion to form a legislative majority,”

asking whether this resulted in their “unequal par-

ticip[ation] in the decisions of the body politic.” J.S.

App. 106a-07a. But this view of effective representation

as requiring statewide partisan fairness is at odds with

the Court’s clear holding that “[a] predominant consid-

eration in determining whether a State’s legislative ap-

portionment scheme constitutes an invidious discrimi-

nation violative of rights asserted under the Equal Pro-

tection Clause is that the rights allegedly impaired are

individual and personal in nature.” Reynolds v. Sims,

377 U.S. 533, 561 (1964) (emphasis added).

A partisan-gerrymandering analysis cannot ignore

district-specific factors, including the historical makeup

of individual districts. By emphasizing the cumulative

statewide performance of Democratic candidates, the

district court side-stepped the inescapable fact that

“American legislative elections are district-oriented,

head-on races between candidates of two or more

parties.” Whitcomb, 403 U.S. at 153. Voters who

supported a losing candidate will not have the

representation they preferred—that is the nature of

electoral politics. And the very nature of single-

member, “first-past-the-post” districts means “a party

with a bare majority of votes or even a plurality of votes

will often obtain a large legislative majority, perhaps

freezing out smaller parties.” Vieth, 541 U.S. at 357

(Breyer, J., dissenting). But this Court has never

viewed these features of the American electoral system

as “a denial of equal protection . . . , even in those so-

19

called ‘safe’ districts where the same party wins year

after year.” Whitcomb, 403 U.S. at 153.

The majority’s opinion below also downplays the ef-

fect of geographic clustering, where Democratic-leaning

voters tend to be concentrated in high-density urban

areas. This well-documented phenomenon exists across

the country, with predictable effects on district-level

elections. See, e.g., Vieth, 541 U.S. at 290 (plurality op.)

(recognizing that “political groups that tend to cluster

(as is the case with Democratic voters in cities) would

be systematically affected by what might be called a

‘natural’ packing effect”); Paul A. Diller, Reorienting

Home Rule: Part 1—The Urban Disadvantage in Na-

tional and State Lawmaking, 77 La. L. Rev. 287, 336

(2016) (“The same overlap of residential demography

and political preference that skews the U.S. House in

favor of Republicans operates, perforce, at the state

level because a vast majority use contiguous, single-

member, winner-take-all districts to elect legislators.”).

The district court majority acknowledged, and the

plaintiffs conceded, that “Wisconsin’s political geogra-

phy affords Republicans a modest natural advantage in

districting.” J.S. App. 200a. In fact, plaintiffs’ demon-

stration plan, which was drawn to minimize their “effi-

ciency gap” metric, still showed an efficiency gap of

2.2% to 3.89% in favor of Republicans under their own

measure. J.S. App. 202a, 203a n.355.°

The majority discounted this factor on the ground

that geography alone “cannot explain the burden that

Act 43 imposes on Democratic voters in Wisconsin.” J.S.

App. 217a-18a. But other factors, such as larger num-

° To reach the 2.2% efficiency gap, the plaintiffs’ expert as-

sumed that there were no incumbents. Accounting for incumben-

cy, the figure rose to 3.89%. J.S. App. 203a n.355.

20

bers of uncontested elections and variations in turnout,

may correlate with and magnify the effects of geo-

graphic clustering. See J.S. App. 243a, 309a-lla

(Griesbach, J., dissenting). It is a symptom of the dis-

trict court’s reliance on plaintiffs’ efficiency-gap ap-

proach, see infra Part II.B, that the court’s analysis is

divorced from evidence regarding particular districts—

and thus factors the Court has previously found indis-

pensable to redistricting analysis.®

2. The district court pretended that it was not en-

shrining a group right to proportional representation

by asserting that its analysis of statewide voting and

outcomes was simply measuring the “magnitude” of

partisan motivations in redistricting. J.S. App. 169a.

But the court’s measure of the degree of partisan ef-

fects necessarily turns on a comparison of statewide

voting and outcomes—that is, a measure of proportional

representation. The district court expressly relied on

the plaintiffs’ proposed “efficiency gap” test—which is a

proportional-representation measure, see infra Part

Il.B—as one factor in its unbound totality-of-the-

circumstances analysis.’ J.S. App. 176a (treating effi-

ciency gap analysis as basis for effect analysis).

® Nor should the partisan effect of Wisconsin’s Act 43 be overes-

timated. As Judge Griesbach’s dissent pointed out, Republicans

already had an “efficiency gap” advantage before Wisconsin reap-

portioned, so any partisan changes from the prior map are not so

striking as the district-court majority seemed to believe. See J.S.

App. 245a-46a; see also J.S. App. 235a (Griesbach, J., dissenting)

(“{I]}t is very likely that the Republicans would have won control of

the legislature in 2012 and 2014 even without the alleged gerry-

mandering, and so this case presents a poor vehicle for the reme-

dying of any grave injustice.”).

’ The district court’s analysis also erroneously rested on specu-

lative predictions about how the “efficiency gap” would operate

21

This Court has consistently rejected proportional

representation metrics as a manageable measure for

partisan-gerrymandering claims under the Equal Pro-

tection Clause. See, e.g., Whitcomb, 403 U.S. at 156 (re-

jecting “the more general proposition that any group

with distinctive interests must be represented in legis-

lative halls if it is numerous enough to command at least

one seat and represents a majority living in an area suf-

ficiently compact to constitute a single-member district.

This approach would make it difficult to reject claims of

Democrats, Republicans, or members of any political

organization in Marion County who live in what would

be safe districts in a single-member district system but

who in one year or another, or year after year, are

submerged in a one-sided multi-member district vote.”);

Bolden, 446 U.S. at 75-76 (plurality op.) (“The Equal

Protection Clause of the Fourteenth Amendment does

not require proportional representation as an impera-

tive of political organization.”); 7d. at 122 (Marshall, J.,

dissenting) (“The constitutional protection against vote

dilution found in our prior cases does not extend to

those situations in which a group has merely failed to

in hypothetical future elections throughout the upcoming dec-

ade. The district court concluded, and plaintiffs ask this Court to

affirm, that Act 43 was likely to “entrench the Republican party

in power,” in part because “Wisconsin’s plan would have an av-

erage pro-Republican efficiency gap of 9.5% for the entire de-

cennial period.” J.S. App. 164a. The panel’s conclusion relied on

expert-witness speculation about how the efficiency gap might

change in the future, given hypothetical statewide vote totals.

J.S. App. 165a-66a (relying on projected future results for de-

cennial period); see also J.S. App. 148a-53a (discussing “swing

analysis” and efficiency gap). But this Court has previously re-

jected the call to “adopt{] a constitutional standard that invali-

dates a map based on unfair results that would occur in a hypo-

thetical state of affairs.” LULAC, 548 U.S. at 420 (plurality op.).

22

elect representatives in proportion to its share of the

population.”); see also, e.g., Vieth, 541 U.S. at 228 (plu-

rality op.) (“groups . . . [do not] have a right to propor-

tional representation); id. at 308 (Kennedy, J., concur-

ring in the judgment) (agreeing with plurality’s rejec-

tion of proposed tests); Bandemer, 478 U.S. at 132 (plu-

rality op.); id. at 155 (O’Connor J., concurring) (reason-

ing that to recognize a partisan gerrymandering claim,

the Court would have to “evolve towards some loose

form of proportionality”).

It is true that the majority did not require that a po-

litical party’s share of the statewide vote be in perfect

proportion to the number of seats held by that political

party. See J.S. App. 169a. But just because the district

court did not require perfect proportional representa-

tion does not mean that its analysis was not inexorably

intertwined with a determination of proportional repre-

sentation. A standard that requires almost, but not

quite, perfect proportional representation is hardly a

judicially manageable partisan-gerrymandering stand-

ard, and it does not comport with this Court’s prece-

dents.

As Judge Griesbach’s dissent rightly explains, the

majority’s reasoning below on proportional political

outcomes would, in effect, require lawmakers to ag-

gressively eliminate many partisan considerations—as

if partisan motive were invidiously suspect. J.S. App.

245a-46a (majority’s test would require legislators to

“engage in heroic levels of nonpartisan statesmanship”).

The logic of the district court majority’s opinion would

permit a finding of partisan gerrymandering based on

some unknown degree of disproportionality between

statewide votes and legislative seats, provided only that

the seats-to-votes gap persisted over the decennial re-

23

districting period. This would inject courts into the re-

districting process in a novel, massively intrusive way.

B. Plaintiffs’ proposed “efficiency-gap” test

does not provide a judicially manageable

standard.

Not only did the district court fail to create a judi-

cially manageable standard, but the plaintiffs also have

not offered a workable test. The “efficiency gap” test

proposed by the plaintiffs (J.S. App. 159a-61a) purports

to correct the flaws of another measure of “fairness” —

the “symmetry standard”—rejected in LULAC. 548

U.S. at 420 (plurality op.); id. at 492 (Roberts, C.J., con-

curring in the judgment); id. at 511 (Scalia, J., concur-

ring in the judgment). But plaintiffs’ “efficiency gap”

test is flawed as well.

1. The previously rejected “symmetry” standard

measured the supposedly discriminatory effect of a map

on “hypothetical” voters and “depend[ed] on conjecture

about where possible vote-switchers will reside.” LU-

LAC, 548 U.S. at 420 (plurality op.). Plaintiffs’ “efficien-

cy gap” metric, in contrast, was conceived as a measure

of “the parties wasted votes in [an] actual election.”

Nicholas Stephanopoulos & Eric McGhee, Partisan

Gerrymandering and the Efficiency Gap, 82 U. Chi. L.

Rev. 831, 857 (2015). This “efficiency gap” metric pur-

ports to identify when a redistricting plan “enables a

party to convert its votes into seats more efficiently

than its adversary—even if this edge would vanish un-

der different electoral conditions.” /d. at 859. The glar-

ing problem with this approach is that it is just another

mathematical formula measuring relative, proportional

partisan outcomes.

This efficiency gap is defined throngh simple arith-

metic: “{It] is . . . the difference between the parties’

24

respective wasted votes, divided by the total number of

votes cast in the election.” Jd. at 851 (emphasis omit-

ted). So-called “wasted” votes are those that do not

arithmetically contribute to the victory of a candidate in

a two-way race—that is, all votes either (1) for the win-

ning candidate beyond the 50% threshold for victory or

(2) for a losing candidate. See id. at 850-53. Thus, for

each election analyzed, nearly 50% of the votes cast are

considered “wasted” under this “efficiency gap” meas-

ure. So, importantly, labeling a vote as “wasted” under

this measure is nothing at all like this Court’s standard

for unlawful vote dilution under the Voting Rights Act.

E.g., LULAC, 548 U.S. at 426-27 (plurality op.). In prac-

tical terms, a party whose voters are more evenly dis-

tributed among legislative districts will see an efficiency

gap in its favor. But that says nothing about the condi-

tions in each of those districts.

Based on this calculation, plaintiffs allege that, as a

result of Wisconsin’s district lines, “Republicans . . .

wield legislative power unearned by their actual appeal

to Wisconsin’s voters.” Mot. to Affirm at 1. But that just

begs the question, as plaintiffs fail to explain what pre-

cisely makes a political party’s “legislative power un-

earned.” Jd.

Tellingly, Wisconsin’s own historical experience

proves that the “efficiency gap” does not measure any-

thing relevant to a determination of excessive, invidious

partisan purposes or effects. Under Wisconsin’s prior

court-drawn map used from 2002 to 2010, the “efficien-

cy gap” consistently favored Republicans—ranging

from 4% to 12%. J.A. Vol. I at 221 (91240), 223 (919252-

56). And as the district court emphasized, that map was

drawn by a court “in the most neutral way it could con-

ceive.” J.S. App. lla (quoting Baumgart v. Wendel-

berger, Nos. 01-C-0121, 02-C-0366, 2002 WL 34127471,

25

at *7 (E.D. Wis. July 11, 2002) (per curiam)). Neverthe-

less—even with a map giving Republicans a 4% to 12%

“efficiency gap”—in 2008, the Democratic Party in Wis-

consin won a majority of the seats in the State Assem-

bly. J.A. Vol. I at 224 (1255). When the Republican Par-

ty retook the Assembly in 2010, it did so despite the

lowest Republican efficiency gap since 1996. J.A. Vol. I

at 222 (1249), 224 (9256). Finally, in 2012, the year Wis-

consin’s Act 43 produced a supposedly anti-democratic

result by denying Democrats a legislative majority, 53%

of Wisconsin voters rejected the attempted recall of

Republican Governor Scott Walker. J.A. Vol. I at 249

(1287).

Consequently, the efficiency gap does not actually

measure vote dilution or distribution in reality, but

simply the deviation from a statewide proportional

votes-to-seats ratio masked by an additional mathemat-

ical formula. This is just another measure of propor-

tional representation.

2. The analytical problems created by relying on

the abstract “efficiency gap” analysis are underscored

by the fact that plaintiffs assert that any redistricting

map with a 7% or greater “efficiency gap” is unconstitu-

tional. J.A. Vol. I at 60 (986). Plaintiffs’ selection of the

7% figure is derived from their expert’s projection that

a percentage greater than 7% would tend to correlate

with control of a legislature never shifting to another

political party, J.A. Vol I at 58-60, and their expert’s

hypothetical conclusion that a 7% efficiency gap would

prevent control of a state legislature from shifting

based on a projected statewide vote share, J.A. Vol. II

at SA164.

This standard would have invalidated redistricting

plans in 36 States over the past few decades. The plain-

tiffs’ expert, Jackman, applied the plaintiffs’ efficiency-

26

gap test to elections in 41 States over a 43-year period,

finding invidious partisan purpose whenever the first

election under a plan produced an efficiency gap great-

er than 7%. See J.A. Vol. II at SA212-SA213. This test

would have condemned approximately one-third of the

redistricting plans in the 786 elections analyzed in the

study. J.A. Vol. II at SA212-SA214. Plaintiffs’ test

would have found an impermissible partisan gerryman-

der in at least one plan in 36 of the 41 States ana-

lyzed*—ineluding Alabama, Arkansas, California, Colo-

rado, Delaware, Florida, Georgia, Hawaii, Illinois, Indi-

ana, Kansas, Kentucky, Massachusetts, Michigan, Min-

nesota, Missouri, Mississippi, Montana, North Carolina,

New Mexico, Nevada, New York, Ohio, Oklahoma,

Pennsylvania, Rhode Island, South Carolina, Tennes-

see, Texas, Utah, Virginia, Vermont, Washington, Wis-

consin, West Virginia, and Wyoming. See J.A. Vol. II at

SA214.

Even when confining this analysis to elections held

in just 2012 and 2014, Jackman found an efficiency gap

greater than 10% in Florida, Indiana, Kansas, Michi-

gan, Missouri, North Carolina, New York, Ohio, Rhode

Island, Virginia, Wisconsin, and Wyoming. See J.A. Vol.

II at SA253. In addition, Jackman averred that one po-

litical party could win a majority in the legislature with-

out obtaining a majority of statewide votes in post-2010

redistricting plans in Alaska, Colorado, Georgia, Maine,

Minnesota, Oregon, Pennsylvania, and Vermont. /d.

* Jackman excluded 9 States—Arizona, Idaho, Louisiana, Mar-

yland, Nebraska, New Hampshire, New Jersey, North Dakota,

and South Dakota—from his analysis because they had “exceed-

ingly high rates of uncontested races” or because they used mul-

ti-member districts, non-partisan elections, or a run-off system.

J.A. Vol. II at SA200.

27

And as noted above, see supra Part I1.A, the district

court’s standard is even more open-ended than the

plaintiffs’ proposed standard. Eschewing plaintiffs’ 7%

threshold, the district court found that Wisconsin “bur-

den[ed] the representational rights of Democratic vot-

ers in Wisconsin by impeding their ability to translate

their votes into legislative seats, not simply for one elec-

tion but throughout the life of Act 43.” J.S. App. 176a-

77a. In other words, the district court did not even

adopt a certain numerical threshold for liability, instead

treating any “efficiency gap” level as permissible cir-

cumstantial evidence that can always be considered un-

der Arlington Heights. J.S. App. 176a. Under this ra-

tionale, as long as a state legislature intended to create

some degree of partisan electoral advantage—and it is

difficult to imagine how this could not be proven—then

the plan would be unconstitutional.

The plaintiffs’ theory or the district court’s test, if

adopted, would require the Court to completely over-

haul its redistricting jurisprudence, disregard funda-

mental premises recognized repeatedly by the Court,

and require courts to perpetually calculate and compare

the relative level of partisan intent and proportional

partisan effect of every redistricting effort in every

State. Nothing in the Constitution supports this trans-

formation of the democratic process.

28

CONCLUSION

This Court should vacate the judgment of the dis-

trict court and order the district court to dismiss the

lawsuit for lack of Article III jurisdiction under the po-

litical-question doctrine. Alternatively, this Court

should reverse the judgment of the district court.

Respectfully submitted.

STEVE MARSHALL KEN PAXTON

Attorney General of Attorney General of Texas

Alabama JEFFREY C. MATEER

MARK BRNOVICH First Assistant Attorney

Attorney General of General

Arizona Scort A. KELLER

Solicitor General

LESLIE RUTLEDGE Counsel of Record

Attorney General of armen

Arkansas MATTHEW H. FREDERICK

Deputy Solicitor General

CHRISTOPHER M. CARR KRISTOFER 8. MONSON

Attorney General of Assistant Solicitor General

Georgia

OFFICE OF THE

CurTIS T. HILL, JR. ATTORNEY GENERAL

Attorney General of P.O. Box 12548 (MC 059)

Indiana Austin, Texas 78711-2548

DEREK SCHMIDT (512) 936-1700

Attorney General of

Kansas

JEFF LANDRY

Attorney General of

Louisiana

BILL SCHUETTE

Attorney General of

Michigan

JOSHUA D, HAWLEY

Attorney General of

Missouri

ADAM PAUL LAXALT

Attorney General of

Nevada

MICHAEL DEWINE

Attorney General of

Ohio

MIKE HUNTER

Attorney General of

Oklahoma

ALAN WILSON

Attorney General of

South Carolina

SEAN D. REYES

Attorney General of

Utah

PATRICK MORRISEY

Attorney General of

West Virginia

AuGuSsT 2017

29