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

FILED

AUG ~4 2017

OFFICE OOF Tithe (APM

SUPTICME COAT tle

No. 16-1161

In THE

Supreme Court of the United States

“— mine miner

BEVERLY R. GILL, ET AL.,

Appellants,

Vv.

WILLIAM WHITFORD, ET AL.,

Appellees.

On Appeal From The United States District Court

For The Western District Of Wisconsin

BRIEF OF THE

WISCONSIN INSTITUTE FOR LAW & LIBERTY

AS AMICUS CURIAE IN SUPPORT OF

APPELLANTS

RICHARD M. ESENBERG DOUGLAS R. Cox

WISCONSIN IneTITUTE For Counsel of Record

LAW & Liperty Amin C. TAYRANI

1139 East Knapp Street BRIAN M. LipsHuTz

Milwaukee, WI 53202 Davin W. CABAZZA*

(414) 727-9466 Gipson, DUNN & CauTcuer LLP

rick@will-law org 1060 Connecticut Avenue, NW.

Washington, DC 20036

(202) 966-8600

dcox@gibsondunn.com

* Admitted only in New York;

practicing under the supervision of

principals of the firm.

Counsel for Amicus Curiae

ee ee ae ee . a

i

TABLE OF CONTENTS

Fe cetscncccncndseccnsccccccctccoscccece 4

A. This Court’s Attempts To Wrestle

Redistricting

Political Process And The Courts.......... 14

D. Centuries Of Historical Practice

Confirm That Political Forces

Temper Excesses In Partisan

Redistricting And That The

Constitution Does Not Empower

Federal Courts To Police

Claims Nonjusticiable Reaffirms

The Outcome Of Vieth And Would

Not Disturb Settled Precedent .............. 21

if

Il. A PLAN THAT COMPLIES WITH

iii

TABLE OF AUTHORITIES

Cases Page(s)

Ala, Legislative Black Caucus v.

Alabama,

No. 2:12-cv-691, 2017 WL 378674

ok eS 8S, re 15, 16

Ala. Legislative Black Caucus v.

Alabama,

Se ane 26, 27

Ala. Legislative Black Caucus v.

Alabama,

988 F. Supp. 2d 1285

TIE NET 3,9

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm'n,

136 S. Ct. 2662 (201B).....ccccseerersssersessrssesseseeesees 15

Baker vy. Carr,

einai 4,5

Burns v. Richardson,

ES SERNA IRR RE a 6

City of Cleburne v. Cleburne Living Ctr.,

4783 U.S. 432 (1986) ..ccccccrccrersessreeseeees so iieteeasdhlall 10

Cooper v. Harris,

I i sieeitasosonl 10

Cox v. Larios,

I a Nl 10

iv

Davis v. Bandemer,

478 U.S. 109 (1986).......:::ccccccceeseeceereeseres

Ferrell v. Hall,

406 U.S. 989 (1972) ......:cccccccrerrerreeeserenevees

Ferrell v. Hall,

339 F. Supp. 73 (W.D. Okla. 1972)..........

Fortson v. Dorsey,

379 U.S. 433 (1965)......:cccereerersecerrersreees

Gaffney v. Cummings,

412 U.S. 735 (19738).......cccccceereececerceenenceees

Gomillion v. Lightfoot,

Fe Ss Ce COOP vcccccccsccccccsevessccceennscceee

INS v. Chadha,

462 U.S. 919 (1983).....0ccccccsersereeeerrssennes

Jimenez v. Hidalgo Cty, Water

Improvement Dist. No. 2,

424 U.S, 950 (1976) ......cccccceceeceeecees

Jimenez v. Hidalgo Cty. Water

Improvement Dist. No. 2,

68 F.R.D. 668 (8.D. Tex. 1975) .......c000

Kerr v. Hickenlooper,

759 F.3d 1186 (10th Cir, 2014)...........0+.

League of United Latin Am. Citizens v.

Perry,

eee rveeveeree 5

548 U.S, 399 (2006) ......0::ccccccerees 7, 8,11, 16, 26, 27

Vv

Melntyre v. Ohio Elections Comm'n,

514 U.S. 384 (199B),........00cccceeesceeeseeeenes

Miller v. Johnson,

515 U.S. 900 (1995) 00.0... ccccccceeeeseereeeeees

Montejo v. Louisiana,

5566 U.S. 778 (2009) .......ccccccceveceeceeeeneees

Myers v. United States,

272 US. 52 (1926) .....:cccceceecseseserereereeeens

Nixon v, United States,

506 U.S. 224 (1993) .......cccceccsecreveneeneeens

NLRB vy. Noel Canning,

134 S. Ct, 2650 (2014) 0... .ccccccceececeeeeeeees

Pearson v. Callahan,

555 U.S, 223 (2009) ......cccceccecceernrrerereens

Perez v. Texas,

No. 11-CA-360, 2011 WL 9160142

(W.D. Tex. Sept. 2, 2011) .ssccsvesssseesseeen

Printz v. United States,

521 U.S. 896 (1997) .......00 serssserrversereeens

Radogno vy. Ill. State Bd. of Elections,

No. 1:11-cv-4884, 2011 WL 5868225

(N.D. TIL. Nov, 22, 2011) ....cc:ccsseeeeerneenes

Radogno vy. Ill. State Bd. of Elections,

No. 1:11 -ev-4884, 2011 WL 5025251

(NLD. sil. Oct. 21, 2011) nr eccceecereeeerereers

sovssuscooonss 10

eeeererteeeene a |

Raleigh Wake Citizens Ass'n v. Wake

Cty. Bd. of Elections,

gn | EE 9

Raleigh Wake Citizens Ass’n v. Wake

Cty. Bd. of Elections,

166 F. Supp. 3d 553 (E.D.N.C. 2016) ..............00. )

Republican Party of N.C. v. Hunt,

No. 94-2410, 1996 WL 60439

ae 16

Reynolds v. Sims,

ES 2,5

Schlesinger v. Reservists Comm. to Stop

the War,

EE eee 4

Seminole Tribe of Fla. v. Florida,

a sseuspenmnncsnsnnesins 22

Shapiro v. McManus,

203 F. Supp. 3d 579 (D. Md. 2016)...............0..0:008 |

Shaw v. Reno,

ED 24, 25, 27

United States v. Curtiss-Wright Export

Corp.,

a 18

Vieth v. Jubelirer,

541 U.S. 267 (2004)........... 2, 3, 7, 8, 10, 14, 15, 16,

Denn edit ecsleebbtateseuens 17, 21, 22, 24, 25, 26, 27, 28

vil

Wells v. Rockefeller,

ER se a ac 5

Wells v. Rockefeller,

311 F. Supp. 48 (S.D.N.Y. 1970)...............:eeeeeeeeeees 5

Wesberry v. Sanders,

ESET rea hace cae 5

Whitcomb v. Chavis,

ITER CREE SE is Beane ee P! 6

WMCA, Inc. v. Lomenzo,

ee Oe weeny cee 5

WMCA, Inc. v. Lomenzo,

238 F. Supp. 916 (S.D.N.Y. 1965).................0.00000 5

Zivotofsky v. Clinton,

ETRE AS He eee ae PEE 3,4

Zivotofsky v. Kerry,

ER I CST ie ae, 17

Federal Constitutional Provisions

es I Bl I itciicnicapnrnapnninitinpnccntanianinctanbnntin 15

State Constitutional Provisions

I Gs Wis OF i cctcercsccrticccciiecccecessnrsonsemenes 15

A suena 15

a I Bi cocsconenvenmntenntnnnninitniiaiisouiig 15

ES SS ESR a a ee ree 3

Wis. Const. art. IV, § 4....-........0200000 sitialeiinivtiniaiinadl 23

Statutes

I Te icicaviicecesiinsiicatinintninignleitinintssitiapeubinaiaaeiiaiibuiniiniian 15

Apportionment Act of 1842, 5 Stat. 491.................. 15

Apportionment Act of 1872, 17 Stat. 28.................... 15

Idaho Code Ann. §§ 72-1501 et seq. ...........ccccccceeeeeeee 15

Wee, Baas, Ram. | LBDGIIED ....ccccccccsscorcceccoscccsessscessecees 3

Proposed Legislation

H.R. 145, 115th Cong., 1st Sess. (2017) ..........00:000 15

H.R. 151, 115th Cong., 1st Sess. (2017) .............:00008 15

H.R. 711, 115th Cong., 1st Sess. (2017) ..........:c00000 15

H.R. 712, 115th Cong., 1st Sess. (2017) ...............000 15

H.R. 713, 115th Cong., 1st Sess. (2017) ..............000. 15

H.R. 1102, 115th Cong., 1st Sess. (2017) ............00++ 15

H.R. 3057, 115th Cong., 1st Sess. (2017) ................. 15

Other Authorities

Peter Argersinger, Al/ Politics Are

Local: Another Look at the 1890s, 8

J. Gilded Age & Progressive Era 7

Peter Argersinger, Representation and

Inequality in Late Nineteenth-

Canstasry Aster tess (BO1Z) .......ccccsceesccsccccccsseccece 19, 20

Peter Argersinger, The Value of the

Vote: Political Representation in the

Gilded Age, 76 J. Am. Hist. 59 (1989)................. 19

Michael Barone, Straight-Ticket Voting

in Divided Government, in The

Almanac of American Politics 2016

(Richard E. Cohen & James A.

eS stscnasuaiasite 12

Jacob Eisler, Partisan Gerrymandering

and the Illusion of Unfairness, 67

Cath. U.L. Rev. (forthcoming 2018),

https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=2993876 ..............0..ccccceceseeeeeneeee 15

Elmer Cummings Griffith, The Rise and

Development of the Gerrymander

Hearing on Wisconsin Redistricting

Plan Before the Wisconsin

Legislature, 100th Leg.,

Extraordinary Sess. (Wis. 2011).................00.00000 14

Michael Klarman, The Framers’ Coup:

The Making of the United States

ll SE 19

Philip Lampi, The Federalist Party

Resurgence, 1808~1816: Evidence

from the New Nation Votes Database,

33 J. Early Am. Republic 255 (2013)...........

Thomas Rogers Hunter, Hastening the

Demise of Federalism in the Low

Country: South Carolina’s

Congressional Gerrymander of 1802,

113 S.C. Hist. Mag. 221 (2012)....................

Nicholas R. Seabrook, Drawing the

Lines: Constraints on Partisan

Gerrymandering in U.S. Politics

Jesse Sussell & James A. Thomson, Are

Changing Constituencies Driving

Rising Polarization in the U.S.

House of Representatives?

EE SI ecenccnsencencersesccesscescesccsecesssccscoootere

David Wasserman, Purple America Has

All But Disappeared,

FiveThirtyEight (Mar. 8, 2017),

https://fivethirtyeight.com/features/

purple-america-has-all-but-

IIE dallictistsnsenntuabiniedeatandnesecneepsseseneensene

INTEREST OF AMICUS CURIAE'

The Wisconsin Institute for Law & Liberty

(“WILL”) is a nonprofit organization that supports

and promotes the public interest in the rule of law,

individual liberty, constitutional government, and a

robust civil society.

WILL is an active participant in issues of public

concern to the State of Wisconsin. WILL has

represented plaintiffs in election law and free speech

cases. Among other matters, it successfully

challenged Wisconsin laws limiting aggregate

campaign contributions and donations from political

committees. It also obtained a favorable settlement in

a challenge to a local sign ordinance. In addition,

WILL’s president and general counsel testified at a

joint public hearing on redistricting before the

Wisconsin Legislature in 2011. WILL strives to

advance the debate concerning law and public policy

in these and other areas.

' Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae states that no counsel for a party authored this brief

in whole or in part and no party or counsel for a party made

a monetary contribution to fund the preparation or

submission of this brief. A contribution to fund the

submission of this brief was made by the Freedom Partners

Institute. Both Appellants and Appellees have entered

consent to the filing of amicus curiae briefs on the docket.

2

SUMMARY OF ARGUMENT

“[Ljegislative reapportionment is primarily a

matter for legislative consideration and

determination,” Reynolds v. Sims, 377 U.S. 533, 586

(1964), because “federalism and the slim judicial

competence to draw district lines weigh heavily

against judicial intervention in apportionment

decisions,” Miller v. Johnson, 515 U.S. 900, 934~—35

(1995) (Ginsburg, J., dissenting).

Despite this “slim judicial competence,” federal

courts in Wisconsin have governed the State’s

redistricting process * ace the 1980s, imposing court-

ordered plans in 1982, 1992, and 2002. See J.S. App.

9a—lla. The district court in this case struck down

Wisconsin’s legislatively enacted redistricting plan

without articulating a manageable standard for

deciding claims of political gerrymandering. It found

no departure from traditional redistricting principles,

but it nevertheless invalidated the plan because the

election results were not proportional to the statewide

vote—a purely hypothetical election that Wisconsin

does not hold.

As this case and others like it demonstrate, there

is no law-based, workable standard for separating

permissible maps from impermissible maps.

Therefore, federal courts have no jurisdiction. This

Court should remove any lingering uncertainty and

hold that “political gerrymandering claims are

nonjusticiable.” Vieth v. Jubelirer, 541 U.S. 267, 281

(2004) (plurality opinion).

Even if a judicially manageable standard could be

devised for political gerrymandering claims,

redistricting plans that adhere to traditional

redistricting criteria are constitutionally permitted.

3

These traditional-criteria districts are not

impermissible partisan gerrymanders, and a majority

of the Justices in Vieth would have upheld such

districts. See, e.g., Vieth, 541 U.S. at 306 (plurality

opinion); id. at 307 (Kennedy, J., concurring in the

judgment); id. at 318 (Stevens, J., dissenting); id. at

847 (Souter, J., dissenting). Striking down districts

that comply with traditional redistricting criteria

“would commit federal and state courte to

unprecedented intervention in the American political

process,” id. at 306 (Kennedy, J., concurring in the

judgment), and require those courte to draw district

lines for everything from Congress to the State Senate

to the local school board. See, e.g., Wis. Const. art, IV,

§3 (providing for political apportionment of State

Senate districts); Wis. Stat. Ann. § 120.02(2)

(providing for political apportionment of school

boards). This would be both unwise and unworkable.

ARGUMENT

This case provides an opportunity for this Court

to clarify an area of law that has harmed the politica!

institutions of the States and left district courte

to answer “unsolvable” questions, Radogno

v. Ill. State Bd. of Elections, No. 1:11-cv-4884, 2011

WL 5468225, at *2 (N.D. Ill. Nov. 22, 2011) (Radogno

ID, by employing “unknowable” standards, Ala.

Black Caucus v. Alabama, 988 F. Supp. 2d

1285, 1296 (M.D. Ala. 2013) (ALBC J).

This Court can restore the appropriate primacy of

States in redistricting and spare district courte from

these “unsolvable” questions by holding claims of

partisan redistricting nonjusticiable. Such claims

raise a political question that federal courte “lack{ |

the authority to decide.” Zivotofaky v. Clinton, 566

U.S. 189, 195 (2012). A dispute asks a political

4

question when there is “a textually demonstrable

constitutional commitment of the issue to a coordinate

political department; or a lack of judicially

discoverable and manageable standards for resolving

it.” Id.

The limit on the judicial power imposed by the

political question doctrine is jurisdictional—a court

has no power to render judgment in a dispute if there

is no standard. See Schlesinger v. Reserviste Comm.

to Stop the War, 418 U.S. 208, 215 (1974) (“The

concept of justiciability ... expresses the

jurisdictional] limitations imposed upon federal courte

by the ‘case or controversy’ requirement of Article

IIl.”). The pelitical question doctrine does not prevent

courte from asserting jurisdiction merely “because the

issues have political implications,” INS v. Chadha,

462 U.S. 919, 943 (1983), but it does prevent a court

from usurping the prerogatives of the political

branches when the constitutional basis for the claim

“lacks sufficient precision to afford any judicially

le standard of review.” Nixon v. United

States, 506 U.S. 224, 230 (1992).

After more than fifty years of contending with

these challenges, this Court should confirm that there

is no determinable legal standard by which a court can

lL. PARTISAN GERRYMANDERING CLAIMS AnE Not

JUSTICIABLE

Since this Court entered the redistricting fray in

Baker vy. Carr, 369 U.S. 186 (1962), district courts

have come to anticipate apportionment litigation

“(like a periodic comet, once every ten years.”

5

Radogno vy. Ill. State Bd. of Elections, No. 1:11-ev-

4884, 2011 WL 5026251, at *1 (N.D. IL. Oct. 21, 2011)

(Radogno I). Despite decades of effort, courte are stil!

unable to devise a workable standard for claims of

partisan gerrymandering.

A. This Court’s Attempts To Wrestle With

Political Gerrymandering Claims

Provide Conflicting Precedents And

Inadequate Guidance To District Courts

This Court first held that apportionment plans

were susceptible to constitutional challenges in Baker

v. Carr. 369 U.S. at 187, The Court also held that

apportionment plans must distribute the population

in roughly equivalent districts, Reynolds v. Sims, 377

U.S. 533, 568 (1964); Wesberry v. Sanders, 376 U.S. 1,

7-8 (1964), and must not divide racial groups to

“deprivie members of one race) of the municipal

franchise,” Gomillion v. Lightfoot, 364 U.S. 339, 347

(1960).

Soon thereafter, the Court was called on to decide

whether the Constitution permitted politically

motivated redistricting plans. Ite early decisions were

inconsistent. Compare WMCA, Inc. v. Lomenzo, 382

U.S. 4 (1965), summarily affg 238 F. Supp. 916

(S.D.N.Y. 1965) (political redistricting claim is not

justiciable); Jimenez v. Hidalgo Cty. Water

Improvement Dist. No.2, 424 US. 960 (1976),

summarily aff'g 68 F.R.D. 668 (8.D. Tex. 1975) (same);

Ferrell v. Hall, 406 U.S. 939 (1972), summarily affg

339 F. Supp. 73 (W.D. Okla. 1972) (same); Wells v.

Rochefeller, 398 U.8. 901 (1970), summarily affg 311

F. Supp. 48 (S.D.N.Y. 1970) (same), with Gaffney v.

Cummings, 412 U.S. 735, 751 (1973) (adjudicating

claim of political apportionment without assessing

justiciability); Fortson v. Dorsey, 379 U.S. 433, 439

6

(1965) (plans that “cancel out the voting strength of

... political elements of the voting population” are

invalid); Burns v. Richardson, 384 U.S. 73, 88 (1966)

(quoting Fortson),; Whitcomb v. Chavis, 403 U.S. 124,

143 (1971) (same).

After years of conflicting decisions, a fractured

majority of this Court held that assertions of partisan

apportionment presented a justiciable question in

Davis v. Bandemer, 478 U.S. 109 (1986), but neither

the Bandemer Court nor any subsequent Court has

been able to devise a standard for such cases.

Bandemer’s plurality opinion suggested a two-

part test, with plaintiffs “required to prove both

intentional discrimination against an identifiable

political group and an actual discriminatory effect on

that group.” 478 U.S. at 127 (White, J., concurring).

For the plurality, that a redistricting plan emerged

from a political process was almost per se proof of

discriminatory intent. Jd, The plurality’s proposed

test for discriminatory effect was more demanding

than its intent test but less precise—the “mere lack of

proportional representation” was not sufficient to

prove discriminatory effect: Rather, plaintiffs had to

show that the plan “consistently degrade|d) a voter's

or a group of voters’ influence on the political process

as a whole.” Id, at 131-32. Justice Powell proposed

an alternative standard that considered “a number of

other relevant neutral factors,” including “the

configurations of the districts, the observance of

political subdivision lines, and other criteria that have

independent relevance to the fairness of districting” —

in short, traditional redistricting criteria. Id. at 162,

165 (Powell, J., concurring in part and dissenting in

part).

7

Bandemer proved difficult in application. See

Vieth, 541 U.S. at 283 (cataloging confusion in courts

caused by Bandemer and widespread critical

commentary by legal scholars).

This Court once again considered the justiciability

of partisan redistricting in Vieth. The Court explicitly

retreated from Bandemer, and a majority of the

Justices agreed that partisan gerrymandering claims

could be considered only rarely, if at all. A plurality

concluded “that political gerrymandering claims are

nonjusticiable and that Bandemer was wrongly

decided.” Id. at 281. The concurrence stopped short

of that conclusion. While it was not ready to

“foreclose all possibility of judicial relief,” it agreed

that, after nearly twenty years, no manageable

standard had been identified, which “make(s| our

intervention improper.” Id. at 306, 317 (Kennedy, J.,

concurring in the judgment). The four dissenting

Justices authored three opinions, each proposing a

different standard, none of which replicated the

Bandemer plurality’s test.

Two years after Vieth, this Court returned to the

question of political apportionment and once again

failed to provide any standard. League of United

Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)

(LULAC). The Court observed that “disagreement

persists” regarding the justiciability of political

gerrymandering claims but declined to revisit Vieth.

Id. at 414. None of the Court’s six opinions garnered

a majority. Nevertheless, a majority of the Court

agreed that the plaintiffs had not identified

constitutionally flawed partisanship in the mid-

decade redistricting plan even though the Texas

legislature did “seem to have decided to redistrict with

the sole purpose of achieving «a Republican

8

congressional majority.” Jd. at 417; see id, at 423

(plurality opinion); id. at 483 (Souter, J., concurring

in part); id. at 511 (Scalia, J., concurring in the

judgment in part).

B. The Thirteen Years Of Confusion

Following This Court’s Decision In

Vieth v. Jubelirer Demonstrate That No

Manageable Standard Will Emerge

Bandemer’s legacy proved to be “one long record of

puzzlement and consternation.” Vieth, 541 U.S. at

282; see also id, at 283. The plurality in Vieth took

this puzzlement as proof that these cases have no

workable standard, while the concurrence suggested

that district courte might yet devise a workable

standard once freed from Bandemer. Id, They have

not done so. Instead, they struggle to apply case law

that is “foggy at best,” and consists mainly of “cobbled-

together plurality opinions that place district courts

in the untenable position of evaluating political

gerrymandering claims without any definitive

standards.” Radogno I, 2011 WL 6026251, at *4.

When last this Court considered the justiciability

of partisan gerrymandering in Vieth, the plurality

concluded that “lejighteen years of essentially

pointless litigation have persuaded us that Bandemer

is incapable of principled application.” Vieth, 541 U.S.

at 306. “Essentially pointless litigation” has now

continued for thirteen more years. The nine opinions

in Vieth and Bandemer could not identify a rule of

decision with support from a majority of the Justices.

Nor, as noted above, did any standard obtain a

majority across the six opinions authored in LULAC.

The predictable outcome is confusion and

disquiet in the lower courts. See, ¢g., Shapiro vy.

9

McManus, 203 ¥. Supp. 3d 579, 5694 (D. Md. 2016)

(“while political gerrymandering claims premised on

the Equal Protection Clause remain justiciable in

theory, it is presently unclear whether an adequate

standard to assess such claims will emerge”); Raleigh

Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, 166

F, Supp. 3d 553, 591 n.15 (E.D.N.C.) (observing the

“extraordinary tension” among this Court’s partisan

g decisions), aff'd in part, 827 F.3d 333,

348 (4th Cir. 2016) (“the Supreme Court has not yet

clarified when exactly partisan considerations cross

the line from legitimate to unlawful”); ALBC J, 988 F.

Supp. 2d at 1296 (“the standard of adjudication for

(plaintiffs) claim of partisan gerrymandering is

‘unknowable”), Radogno IT, 2011 WL 5868225, at *2

(“political gerrymandering claims ... are currently

‘unsolvable’ based on the absence of any workable

standard for addressing them”); Perez v. Texas, No.

11-CA-360, 2011 WL 9160142, at *11 (W.D. Tex. Sept.

2, 2011) (dismissing political gerrymandering claims

due to the absence of “a reliable standard by which to

measure the redistricting plan’s alleged burden on .. .

representational rights”).

Before Vieth, “the results from one

gerrymandering case to the next” proved “disparate

and inconsistent.” Vieth, 641 U.S. at 308 (Kennedy,

J., concurring in the judgment). Vieth’s fractured

outcome has itself left lower courts “askling) ... how

we could ‘allow a claim to go forward that no one

understands,” ALBC I, 988 ¥, Supp. 2d at 1296, and

the results in these cases remain “disparate and

inconsistent,”

In their search for a constitutionally cognizable

standard, appellees grounded their arguments below

on the First Amendment and the Equal Protection

10

Clause. Neither provides a clear or appropriate

standard for courts to evaluate their claims.

Appellees’ First Amendment claim is unworkable

because it would subject all apportionment plans to

strict scrutiny as restrictions on core political speech

or associational interests, McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 347 (1995), which would

preclude all political considerations. That is hard to

square with the rule that “politics as usual’ is. . . itself

a ‘traditional’ redistricting criterion.” Cox v. Larios,

542 U.S. 947, 952 (2004) (Scalia, J., dissenting) (citing

Vieth, 541 U.S. at 285 (plurality opinion); id. at 307

(Kennedy, J., concurring in the judgment); id. at 344

(Souter, J., dissenting); id. at 355 (Breyer, J.,

dissenting)); see also Cooper v. Harris, 137 S. Ct. 1455,

1464 (2017) (listing “partisan advantage” as a

traditional redistricting criterion).

An equal protection claim similarly provides no

workable standard because partisanship is neither an

immutable characteristic nor a _ protected

classification. See City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 440 (1985) (classifications by race,

alienage or national origin are subject to strict

scrutiny). Nothing in the Equal Protection Clause

requires State governments to act in a way that

minimizes the political consequences of the

geographic concentration of voters by party.

Appellees propose their “efficiency gap” metric in

an effort to provide a purportedly neutra! metric for

their constitutional claims. But the “efficiency gap” is

not novel and does not remedy a constitutionai injury.

It is based on a series of unsupported and indefensible

presumptions. Judge Griesbach’s dissent detailed

several of these flaws: The efficiency gap naively

assumes that each marginal seat is of equa) political

11

importance; it ignores the fact that “votes are

meaningful, even if ‘inefficient”; and it is based on an

unsupported presumption that whenever “one party

won a lot of close elections,” an unconstitutional map

was to blame. J.S. App. 282a, 285a, 295a. Even

setting these flaws aside, the efficiency gap cannot

distinguish between election results caused by a

gerrymander and election results caused by historic

and unusual changes in turnout, as Wisconsin saw in

2012. J.S. App. 303a—06a.

Ultimately, the efficiency gap measure is merely

a dressed-up form of the proportionality analysis that

has been rejected by this Court. The efficiency gap

assumes that the cumulative results of district

elections ought to “track” to some unspecified degree

the aggregate totals of votes for Democrat and

Republican candidates statewide. Because there is no

reason to presume that this will be so—voters who

prefer Democrats and Republicans will not

necessarily be distributed evenly across a State—the

efficiency gap presupposes a new right to proportional

representation. That it is proportionality in disguise

is suggested by the contrived nature of its name; a

lack of statewide proportionality is constitutionally

“inefficient” and votes are “wasted” only if statewide

proportionality is a constitutional goal.

Far from demanding proportionality, this Court

has repeatedly rejected such a standard. Even the

Bandemer plurality agreed that “the mere lack of

proportional representation will not be sufficient to

prove unconstitutional discrimination.” 478 U.S. at

132 (White, J., concurring); see also LULAC, 548 U.S.

at 419 (Kennedy, J., concurring in the judgment)

(‘there is no _ constitutional requirement of

proportional representation, and equating a party’s

12

statewide share of the vote with its portion of the

congressional! delegation is a rough measure at best”).

Furthermore, the “efficiency gap” identified by the

district court is attributable not to nefarious political

gerrymandering but to changing political geography.

Parties suffer large numbers of “wasted” votes

because like-minded voters increasingly live in close

proximity to each other. J.S. App. 307a-lla

(discussing Wisconsin’s political geography); see also

Michael Barone, Straight-Ticket Voting in Divided

Government, in The Almanac of American Politics

2016, at 19 (Richard E. Cohen & James A. Barnes eds.,

2015) (Electoral outcomes are “largely the result of

demographic clustering, the fact that heavily

Democratic voting groups—blacks, Hispanics (in

many states) and gentry liberals—tend to be clustered

in most central cities, many sympathetic suburbs and

most university towns, while Republican voters are

spread more evenly around the rest of the

country....[(Cllustering helps Republicans in

elections held in equal-population districts, since

Democratic votes are clustered in relatively few

districts and Republican votes are more evenly spread

around in the rest.”); Jesse Sussell & James A.

Thomson, Are Changing Constituencies Driving

Rising Polarization in the U.S. House of

Representatives?, at 5-8 (Rand 2015); Nicholas R.

Seabrook, Drawing the Lines: Constraints on Partisan

Gerrymandering in U.S. Politics 3 (2017) (“Effects

attributed to partisan gerrymandering have been

consistently demonstrated in the published political

science literature to have mostly emanated not from

deliberate manipulation of district boundaries, but

instead from the natural impact of demographics and

geography.”).

13

Nationwide, in the 2016 election, 61% of voters

cast bailots in counties that went at least 60-40 to one

presidential candidate, up from 50% of voters living in

such counties in 2012 and 39% of voters in 1992.

David Wasserman, Purple America Has Ali But

Disappeared, FiveThirtyEight (Mar. 8, 2017),

https://fivethirtyeight.com/features/purple-america-

has-all-but-disappeared/, In 2016, only 303 of

America’s 3,113 counties were decided by a single-

digit margin, while in 1992, 1,096 counties were

decided by single-digit margins. Jd. Over the same

period, the number of counties decided by margins

greater than 50 percentage points increased from 96

to 1,196. Id. Minimizing the “efficiency gap” in this

rapidly changing political landscape would require

legislatures to draw tortured districts in a fruitless,

open-ended quest for some notion of proportional

representation. Nor is there any neutral way for

courts to superintend such a process or to impartially

redraw districts after invalidating a politically drafted

plan.

Although the district court recognized that the

“efficiency gap” was a product of the geographic

concentration of voters who have historically

preferred Democrats, it nonetheless found that the

gap was just too big. But the district court offered no

standard to measure how much is too much. At most,

it concluded that, even though the Wisconsin

legislature respected traditional redistricting

principles, it could have drawn a set of maps with a

lower efficiency gap. In other words, the district court

imposed on the legislature a constitutional obligation

to gerrymander for competitiveness.

As technology advances, mapmakers will be able

to generate, with a few keystrokes, an infinite variety

14

of potential maps that have different efficiency—or

proportionality—-gaps and that balance traditiona)

redistricting principles in marginally different ways.

By requiring district courts to decide how much

partisan proportionality is required, the judgment

below will force courts to put political considerations

at the center of their decisions. But district courts are

not authorized or equipped to draw sharp lines

separating the constitutionally permissible from the

impermissible among huge numbers of computer-

generated plans. They are particularly ill-equipped to

employ an “efficiency gap” standard that compels

them to evaluate the extent to which a redistricting

plan must ensure—or is permitted to deviate from—

partisan proportionality.

C. Repeated Litigation Over Redistricting

Damages The Political Process And The

Courts

Judicial micromanagement of the redistricting

process destabilizes the political branches. By

imposing a de facto proportionality requirement, the

district court’s “efficiency gap” test would undermine

single-member districts. J.S. App. 276a~79a. If

legislative representation must match statewide voter

preferences, courts will eventually require a

proportional representation system, particularly as

minor-party or special-interest plaintiffs bring claims.

See Joint Public Hearing on Wisconsin Redistricting

Plan Before the Wisconsin Legislature, 100th Leg.,

Extraordinary Sess. 61 (Wis. 2011) (statement of

Professor Richard Esenberg). That system will

diminish electoral accountability and increase

legislative gridlock as shifting coalitions transition in

and out of power. See Vieth, 541 U.S. at 357-58

(Breyer, J., dissenting).

15

There is no justification for this. Voters can use

the political process to restrain partisan

apportionment. Vieth, 541 U.S. at 362-—63 (Breyer, J.,

dissenting). In States where the political branches

conduct apportionment, state law and electoral

accountability provide a check on _ partisan

gerrymanders. Or, if voters prefer, they can limit the

legislature’s role in drawing legislative districts. See

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n, 135 S. Ct. 2652, 2663 (2015) (upholding

redistricting commission adopted through initiative

process); Cal. Const. art. XXI, §§ 1-3 (establishing

redistricting commission); Alaska Const. art. VI, § 8

(same); Wash. Const. art. II, § 43 (same); Idaho Code

Ann. §§ 72-1501 et seg. (same). At the federal level,

Congress has the authority to police apportionment of

congressional districts. U.S. Const. art. I, § 4; see also

2 U.S.C. § 2c; Apportionment Act of 1842, 5 Stat. 491

(requiring the use of single-member districts);

Apportionment Act of 1872, 17 Stat. 28 (requiring

contiguous single-member districts of equal

population). There are seven bills currently pending

in Congress that propose to regulate apportionment.

H.R. 3057, H.R. 1102, H.R. 713, H.R. 712, H.R. 711,

H.R. 151, H.R. 145, 115th Cong., 1st Sess. (2017).

And, at every level of government, elections

themselves can check partisan redistricting. An

overly partisan map risks spreading the dominant

party’s voters too thinly, and the perception of undue

partisanship may provoke an electoral backlash. See,

e.g., Ala. Legislative Black Caucus v. Alabama, No.

2:12-cv-691, 2017 WL 378674, at *4 (M.D. Ala. Jan.

20, 2017) (“The 2001 partisan gerrymander [by

Democrats) failed to save the Democrats in 2010,

when Republicans won supermajorities in both

houses.”) (ALBC III); see also Jacob Eisler, Partisan

16

Gerrymandering and the Illusion of Unfairness, 67

Cath. U.L. Rev. (forthcoming 2018), https://papers.

ssrn.com/sol3/papers.cfm?abstract_id=2993876

(arguing that “political adaptation” by voters and

parties “undermines the case for litigating partisan

gerrymandering”).

Political apportionment challenges also impose

serious burdens on judicial resources. Redistricting

litigation bursts into the federal courts at the

conclusion of each Census cycle. Radogno I, 2011 WL

5025251, at *1. Mid-cycle redistricting generates

further litigation. LULAC, 548 U.S. at 409-10. Nor

is litigation limited to only a hani«l of States—

apportionment lawsuits are filed acives the nation.

Because these lawsuits are heard by three-judge

district courts and require exhaustive judicial fact-

finding, they impose unusually high demands on

judges. See, e.g., ALBC IIT, 2017 WL 378674 (457-

page slip opinion); J.S. App. la—315a (116-page slip

opinion). Apportionment challenges drag on for

* The Vieth plurality identified a perfect example of the futile

burdens these cases place on district courts. One district

court in North Carolina considered 311 stipulations, 132

witness statements, and 300 exhibits, and heard two days of

oral argument, before concluding that the State’s system of

statewide election of superior court judges “resulted in

Republican candidates experiencing a consistent and

pervasive lack of success and exclusion from the electoral

process as a whole” and that “these effects were likely to

continue unabated into the future.” Republican Party of N.C.

v. Hunt, No. 94-2410, 1996 WL 60439, at *1 (4th Cir. Feb. 12,

1996). Five days after the district court’s ruling, every

Republican candidate running for superior court under that

same electoral system prevailed. Vieth, 641 U.S. at 287 n.8.

The circuit court remanded for reconsideration. /d.

17

years, often reaching resolution only as the next

Census approaches.

A fractured result, as in Bandemer and Vieth,

affirming the decision below would continue to place

district courts in “litigation limbo,” condemning them

to “many more years wrestling with (these cases) al!

without a wisp of an idea what rule of law might

govern (their) disposition.” Kerr v. Hickenlooper, 759

F.3d 1186, 1195 (10th Cir. 2014) (Gorsuch, J.,

dissenting from denial of rehearing en banc).

Recognizing that these questions are nonjusticiable

would acknowledge the reality of redistricting and

relieve the courts and the political branches of these

harms.

D. Centuries Of Historical Practice

Confirm That Political Forces Temper

Excesses In Partisan Redistricting And

That The Constitution Does Not

Empower Federal Courts To Police

Partisanship

Partisan considerations have influenced

redistricting throughout American history. And, as

noted above, Americans have traditionally understood

that elections, not courts, provide the most effective

check on partisan apportionment. Because the

political branches conduct redistricting, the process

has always reflected political interests. See Vieth, 641

U.S. at 275 (plurality opinion).

When this Court considers questions of federalism

weight upon historical practice.” NLRB v. Noel

Canning, 134 8. Ct. 26560, 2559 (2014); see also

Zivotofeky v. Kerry, 136 8. Ct. 2076, 2091 (2015) (“In

separation-of-powers cases this Court has often ‘put

16

significant weight upon historical practice.” (quoting

Noel Canning, 134 8. Ct. at 2669)); Printz v. United

States, 621 U.S. 898, 905 (1997) (“contemporaneous

legislative exposition of the Constitution ...,

acquiesced in for a long term of years, fixes the

construction to be given ite provisions” (quoting Myers

v. United States, 272 U.S. 52, 176 (1926))); United

States v. Curtiss-Wright Export Corp., 299 U.S. 304,

327~28 (1936) (“A legislative practice such as we have

here, evidenced not by only occasional instances, but

marked by the movement of a steady stream for a

century and a half of time, goes a long way in the

direction of proving the presence of unassailable

ground for the conatitutionality of the practice.”),

America’s most famous instance of partisan

redistricting took place in 1812, when Massachusetts

Republicans devised a map so aggressive that it led

critics to coin a new term-——“Gerrymandering’—a«a

portrnanteau of Governor Elbridge Gerry's name and

the stylized salamander that one of his districts was

said to resemble. Philip Lampi, The Federalist Party

Resurgence, 1808-1816: Evidence from the New

Nation Votes Database, 33 J. Early Am. Republic 255,

262 (2013). The Republican map left Federalists with

only eleven of forty senate seats (27%) despite

winning 51% of the statewide vote, Id.

Although memorable, Governor Gerry's

salamander was far from alone. Legislatures have

drawn districts influenced by partisan considerations

t American history. District boundaries

throughou

drawn by the Founding generation often displayed

partisan influence. See, ey., Elmer Cummings

Griffith, The Rise and Development of the

Gerrymander 61 (1907) (observing that “the principles

of the gerrymander were well known and used” in the

19

Founding era); id, at 24-30, 42-118 (describing pre-

revolutionary gerrymanders in Pennsylvania, New

York, and Virginia); Thomas Rogers Hunter,

Hastening the Demise of Federalism in the Low

Country: South Carolina's Congressional

Gerrymander of 1802, 113 8.C. Hist. Mag. 221, 222,

241-655 (2012) (describing gerrymandering of colonial

assembly districte in 1690 and of congressional

districts in the early republic); Lampi, supra, at 258.

In fact, ratification of the Constitution itself may have

occurred only because of gerrymandering in favor of

low country planters in South Carolina’s Assembly

and ratifying convention. Michael Klarman, The

Framers’ Coup: The Making of the United States

Constitution 451 (2016), The history of post-Civil War

politics belies any suggestion that the Fourteenth

Amendment forbids partisan considerations in

redistricting. See, ¢.g., Peter Argersinger, The Value

of the Vote: Political Representation in the Gilded Age,

76 J. Am. Hist. 59, 66 (1989) (recounting that

Democrate designed Ohio's 1890 congressional

districts to secure a majority of seate with a minority

of the statewide vote); Peter Argersinger,

Representation and Inequality in Late Nineteenth-

Century America 310-16 (2012) (noting similar tactice

employed by both parties in Michigan, Illinois, lowa,

Indiana and Wisconsin in the 18808 and 1890s).

Centuries of history also show that political forces

themselves impose the most effective restraints on

partisan redistricting. See Seabrook, supra, at 9, 12-

20, 25-82 (detailing the significant political

constraints that discourage partisan gerrymandering

and dampen ite effects over time). First, a party that

seeks to maximize the number of seats it holds also

necessarily diminishes ite expected margin of victory

in each race. A slight change in the political temper

20

can produce dramatic changes when the formerly

dominant party has traded comfortable margins of

victory for the chance to win more seats. Second, a

party perceived as seeking power through

redistricting may alienate voters and mobilize the

opposition party.

The risk of setting the margins too thin was

demonstrated after the 1891 reapportionment, In

power after victories in the early 18908, Democrats

drew districts they expected to win narrowly. But

they diluted their votes too much. When the party's

popularity waned in 1894, more than 110

congressional seate switched from Democrat to

Republican control. Peter Argersinger, All Politics

Are Local: Another Look at the 18908, 8 J. Gilded Age

& Progressive Era 7, 21-22 (2009). In Indiana,

Illinois, Michigan, and Wisconsin, not a single

Democrat was elected to Congress, even though

Democrat majorities in all but Indiana had drawn

maps to favor their party. Argersinger,

Representation and Inequality, supra, at 270-72, As

one Michigan reporter observed, “|tJhe Democratic

gerrymander of 91 has given the Republicans every

district in the state.” Argersinger, All Politics Are

Local, supra, at 21 (quoting Detroit Evening News,

Apr. 10, 1895). The political hazards of the

were aleo made clear by Elbridge Gerry

himself, whose infamous redistricting caused such an

uproar that he lost reelection to the governorship even

as his party won 73% of the seata in the state senate.

Lampi, supra, at 262.

The uninterrupted history of partisan

considerations in redistricting—including shortly

after ratification of the First and Fourteenth

Amendments —strongly suggests that the

21

Constitution does not authorize federal courts to

police partisan redistricting. These centuries of

historical practice instead suggest that effective

supervision of partisanship comes through the ballot

box, not the courtroom.

EK. Holding Partisan Gerrymandering

Claims Nonjusticiable Reaffirms The

Outcome Of Vieth And Would Not

Disturb Settled Precedent

In Vieth, the entire Court declined to follow the

plurality’s standard in Bandemer. A plurality of four

Justices concluded “that Bandemer was wrongly

decided,” Vieth, 641 US. at 281, while Justice

Kennedy joined the judgment, noting “the

shortcomings” of Bandemer and observing that the

Court’s inability to describe a standard “make(s| our

intervention improper,” id, at 308, 316 (Kennedy, J.,

concurring in the judgment).

To the extent that Vieth arguably left open the

slender possibility that some partisan

cases may be justiciable, stare decisia

is no barrier to this Court's holding that they are

nonjusticiable. “Beyond workability, the relevant

factors in deciding whether to adhere to the principle

of stare decisia include the antiquity of the precedent,

the reliance interests at stake, and of course whether

the decision was well reasoned.” Montejo v.

Louisiana, 5656 U8, 778, 792-93 (2009). Thies Court

also considers whether “experience has pointed up the

precedent’s shortcomings.” Pearson v. Callahan, 655

U.S. 223, 233 (2009).

None of these factors counsels in favor of the

justiciability of partisan gerrymandering claims, for

substantially the same reasons that the Court

22

abrogated Bandemer in Vieth, First, there ia no

workable test to disturb. See supra Section 1.8. This

Court has not hesitated to overturn fractured

decisions that “creatle| confusion among the lower

courts,” Seminole Tribe of Fla, v. Florida, 617 U.S, 44,

64 (1996), or that contain no test at all, see Vieth, 641

U.S. at 3206-06 (plurality opinion) (noting the

Bandemer “majority's inability to enunciate the

judicially discernible and manageable standard that

it thought existed”), Second, the decision in Vieth is

only thirteen years old, which is younger than other

decisions that this Court has overturned, See, ¢.g.,

Montejo, 566 U.S. at 793 (overturning a decision that

was “only two decades old”), Third, the reliance

interests are “weak because it is hard to imagine how

any action taken in reliance upon (the decision) could

conceivably be frustrated—except the bringing of

lawsuits, which is not the sort of primary conduct that

is relevant.” Vieth, 541 U.S. at 306 (plurality opinion).

Fourth, the fractured nature of the decision means

that there is no concern with overturning a well-

reasoned majority opinion. Cf. Seminole Tribe, 617

US. at 66 (calling a decision “of questionable

precedential value, largely because a majority of this

Court expressly disagreed with the rationale of the

plurality”), Finally, thirteen years of confusion in the

district courte have “pointed up the precedent’s

shortcomings.” Pearson, 5666 U.S. at 233; see supra

Section 1.B. The Court should hold that assertions of

partisan gerrymandering are not justiciable.

Il, A PLAN THAT COMPLIES With TRADITIONAL

REDISTRICTING CrirTrenta Is Not An

UNCONSTITUTIONAL POLITICAL GERRYMANDER

If the Court holds that political gerrymandering

claims are justiciable, it should also impose a

23

commonsense limitation on such claims: A district ia

not an unconstitutional partisan gerrymander when

it complies with traditional redistricting criteria. For

example, the majority party in the legislature might

draw a district that it hopes will favor ite constituency

in the next election, but the map also might include

only compact, contiguous districta that respect

political subdivisions and communities of interest.

See Wis, Const, art. IV, 4 4 (“such districts |are) to be

bounded by county, precinct, town or ward lines, to

consist of contiguous territory and be in as compact

form as practicable”),

The district court reached the opposite conclusion,

holding that an _ unconstitutional gerrymander

oceurred even though, as the dissent observed, “the

plaintiffs did not argue that Act 43 created any

districta with unusual shapes or lines” and did not

show any “appreciable problems with contiguity,

compactness, or regard for political boundaries.” JS.

App. 251a. The district court's reasoning ignores the

consensus on this issue in Vieth and the logic of this

Court's other gerrymandering cases,

Even though the Court agreed on little in Vieth,

all but one Justice endorsed an approach that upholds

districts that comply with traditional redistricting

criteria. The plurality would not have allowed any

political gerrymandering challenges, which means

that they would not have struck down a district that

complied with traditional redistricting criteria, Three

of the four dissenters—who agreed on little else—

made clear that they would uphold districts that

complied with traditional redistricting criteria.

Justice Stevens would have held a_ district

unconstitutional only “when any pretense of

neutrality is forsaken unabashedly and all traditional

24

districting criteria are subverted for partisan

advantage.” Vieth, 541 U.S. at 318 (Stevens, J.,

dissenting); see also id. at 335 (“We have explained

that ‘traditional principles| }’. . . ‘may serve to defeat

a claim that a district has been gerrymandered on

racial lines.” (quoting Shaw v. Reno, 509 U.S. 630,

647 (1993))); id. at 339 (“{I]f no neutral criterion can

be identified to justify the lines drawn ... then no

rational basis exists to save the district from an equal

protection challenge.”).

Justice Souter, joined by Justice Ginsburg,

proposed a five-part prima facie case that a plaintiff

must make, including that “the district of his

residence paid little or no heed to ... traditional

districting principles.” Vieth, 541 U.S. at 347-48

(Souter, J., dissenting) (citation omitted); see also id.

at 349 (plaintiffs must “establish specific correlations

between the district’s deviations from traditional

districting principles and the distribution of the

population” and “present the court with a hypothetical

district” that “deviate(s} less from traditional

districting principles than the actual district”).

Justice Kennedy's concurring opinion also

suggests that a district that complies with traditional

redistricting criteria is constitutional. He stated that

“(a] determination that a gerrymander violates the

law must rest on something more than the conclusion

that political classifications were applied. It must rest

instead on a conclusion that the classifications,

though generally permissible, were applied in an

invidious manner or in a way unrelated to any

legitimate legislative objective.” Jd. at 307. Under

this test, a district that complies with traditional

redistricting criteria would pass muster because it

would be “[(rielated to [|] legitimate legislative

25

objective|s}.” Thus, as the dissent noted below, all but

one of the opinions in Vieth would have agreed that a

district that complies with traditional redistricting

criteria is not an _ unconstitutional political

gerrymander. J.S. App. 252a—258a.

This consensus accords with the Court’s reasoning

in racial gerrymandering cases, in which there is a

presumption of validity when districts comply with

traditional redistricting criteria. Three factors

“requirle} courts to exercise extraordinary caution,”

Miller, 515 U.S. at 916, in gerrymandering cases that

turn on indirect proof of alleged discriminatory effect.

First, “[e]lectoral 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.” Jd. at 915; see also

id. at 916 (referring to “the sensitive nature of

redistricting”). Second, this Court has recognized a

“presumption of good faith that must be accorded

legislative enactments.” Jd. at 916. Third, there is an

“evidentiary difficulty” in establishing whether a

legislature was motivated by impermissible

considerations or was merely aware of them. /d.; see

also Shaw, 509 U.S. at 646 (referring to the “difficulty

of proof”). These same factors favor “extraordinary

caution” in partisan gerrymandering cases. See Vieth,

541 U.S. at 306 (Kennedy, J., concurring in the

judgment) (affording “judicial relief” in political

gerrymandering cases only “if some limited and

precise rationale were found to correct an established

violation of the Constitution in some redistricting

cases” (emphasis added)).

The district court in this case abandoned the

restraint counseled by this Court. The majority

concluded that “[i]t is entirely possible to conform to

26

legitimate redistricting purposes but still violate the

Fourteenth Amendment because the discriminatory

action is an operative factor in choosing the plan.” J.S.

App. 120a. In reaching this conclusion, it relied

primarily on inapposite dicta from Fortson v. Dorsey,

379 U.S. 433 (1965), and Gaffney v. Cummings, 412

U.S. 735 (1973), which were one-person, one-vote

cases. But holdings in one-person, one-vote cases

provide no guidance on the significance of traditional

redistricting criteria because “an equal population

goal... is part of the redistricting background,” not a

traditional redistricting principle. Ala. Legislative

Black Caucus v. Alabama, 135 S. Ct. 1257, 1270

(2015) (ALBC IJ). As a result, these cases do not

resolve whether compliance with traditional

redistricting principles is sufficient to defeat a claim

of political gerrymandering.

If compliance with traditional redistricting

criteria is not a limit on political gerrymandering

claims, then courts will be propelled deep into the

political process. As noted above, passing upon the

constitutionality of district maps when confronted

with thousands of options that all comply with

traditional redistricting criteria will force courts to

decide how much partisanship is too much—a

subjective political judgment. And a legislature that

was impermissibly partisan—however that is

defined—when it drew the initial map likely will

remain impermissibly partisan when a court orders it

to draw a new one. If so, courts will end up drawing

more plans themselves and shouldering “the

difficulties ... in drawing a map that is fair and

rational.” LULAC, 548 U.S. at 415. These tasks will

further burden the district courts in an area where

this Court has already expressed doubts about

manageability. See, e.g., Vieth, 541 U.S. at 307-08

27

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

risk for the courts of “assuming political, not legal,

responsibility for a process that often produces ill will

and distrust”); see also supra Section I.C.

Redistricting by a legislature has always been an

unavoidably political process. Vieth, 541 U.S. at 274

(plurality opinion); see also ALBC II, 135 S. Ct. at

1270 (listing “political affiliation” as a traditional

redistricting criterion); Vieth, 541 U.S. at 360 (Breyer,

J., dissenting) (“[T]raditional or historically based

boundaries are not, and should not be, ‘politics free.””);

Shaw, 509 U.S. at 646 (noting that the legislature “is

aware of... political persuasion” when it redistricts).

What history has sanctioned, modern thought has

ratified. “[D)rawing lines for congressional districts is

one of the most significant acts a State can perform to

ensure citizen participation in republican self-

governance.” LULAC, 548 U.S. at 416. And “purely

political boundary-drawing, even where harmful to

the members of one party, will often nonetheless find

justification in other desirable democratic ends, such

as maintaining relatively stable legislatures in which

a minority party retains significant representation.”

Vieth, 541 U.S. at 360 (Breyer, J., dissenting).

Because of the political nature of redistricting and

the limited role of our federal] judiciary, courts cannot

plausibly require the legislature to redraw every

politically motivated district. “A decision ordering the

correction of all election district lines drawn for

partisan reasons would commit federal and state

courts to an unprecedented intervention in the

American political process.” Vieth, 541 U.S. at 306

(Kennedy, J., concurring in the judgment); see also

Miller, 515 U.S. at 916 (recognizing “the intrusive

potential of judicial intervention into the legislative

28

realm”). The task of the courts—if these claims are

deemed somehow justiciable, see supra Section I-~is

to regulate political gerrymanders in which

“legislative restraint was abandoned.” Vieth, 541 U.S.

at 316 (Kennedy, J., concurring in the judgment).

Restraint has not been abandoned when traditional

redistricting principles are observed.

CONCLUSION

The Court should put an end to the confusion in

the district courts by vacating the judgment and

holding that political gerrymandering claims are

nonjusticiable. At the very least, the Court should

make clear that a district that complies with

traditional redistricting criteria cannot be an

unconstitutional partisan gerrymander.

Respectfully submitted,

RICHARD M. ESENBERG DOUGLAS R. Cox

WISCONSIN INSTITUTE FOR Counsel of Record

LAW & LIBERTY AMIR C. TAYRANI

1139 East Knapp Street BRIAN M. LIPSHUTZ

Milwaukee, WI 53202 DAVID W. CASAZZA*

(414) 727-9455 GIBSON, DUNN & CRUTCHER LLP

rick@will-law.org 1060 Connecticut Avenue, N.W.

Washington, DC 20036

(202) 955-8500

dcox@gibsondunn.com

* Admitted only in New York;

practicing under the supervision

of principals of the firm.

Counsel for Amicus Curiae

August 4, 2017