Motion — Benisek v. Lamone, 138 S. Ct. 50 (2017) (No. 17-333)

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jn The

Supreme Court of the Anited States

OFFICE OF THE CLERK

O. JOHN BENISEK, et ai.,

Appellants,

Vv.

LINDA H. LAMONE, et al.,

Appellees.

On Appeal From The United States District Court

for The District of Maryland

MOTION TO AFFIRM

BRIAN E. FROSH

Attorney General of Maryland

STEVEN M. SULLIVAN*

Solicitor General

SARAH W. RICE

JENNIFER L. KATZ

Assistant Attorneys Genera!

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6325

ssullivan@oag state.md.us

Attorneys for Appellees

OCTOBER 2017 *Counsel of Record

COCKLE LEGAL BRIEFS (800) 225-6964

WWW,COCKLELEGALBRIEFS,COM

ion

QUESTIONS PRESENTED

1. Did the three-judge district court act within

its discretion when it denied plaintiffs’ motion for pre-

liminary injunction seeking to enjoin Maryland’s 2011

congressional redistricting law because the plaintiffs

failed to provide sufficient evidence that the redistrict-

ing caused them any injury?

2. Is the legal claim articulated by the three-

judge district court unmanageable and therefore non-

justiciable?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................... iiedonsiues i

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TABLE OF AUTHORITIES .......................ccceee cee. iii

EE Et AP IEE scesosentnecsssscscteesoepeetsunesesacess 1

ST iccencdsasennannisksaciobisnensésoion abdabeebebiad 1

IIT ccncncctsacetetesacendinrenieniinabobasenupssenincaeeds 10

I. The Three-Judge District Court Appro-

priately Exercised Its Discretion in

Denying Plaintiffs’ Belated Preliminary

IE III vnicccnusickemcnbetendnnnbasinusroneiioe 10

A. The Plaintiffs Failed to Provide Any

Evidence That Maryland Decisionmakers

Caused Them Any Constitutionally

BR nccesnccscccvncssscsonesesnesese 11

B. The Three-Judge Court Appropriately

Assigned Plaintiffs the Burden to Prove

PE CE Riccnodeccanncéqnsesescatsntess 19

C. Additional Reasons Support Denial of

the Preliminary Injunction ................. 22

Il. The Plaintiffs’ Claims Are Non-Justiciable..... 26

A. Plaintiffs’ First Amendment Retaliation

Claim Is Non-Justiciable in the Context

of Congressional Redistricting.............. 26

B. The Three-Judge District Court Opinion

Demonstrates That the Standard Is Not

iil

TABLE OF AUTHORITIES

CASES

Aberdeen & Rockfish R. Co. v. Students Chal-

lenging Regulatory Agency Procedures

(SCRAP), 409 U.S. 1207 (1972)............00se.sesevees 10, 11

Anne Arundel County Republican Cent. Comm.

v. State Admin. Bd. of Election Laws, 781

P. Supp. 304 (D. Md. 1901).................cccrcccrcsrorees severe 2

Bd. of County Comm’rs, Wabaunsee County, Kan.

v. Umbehr, 518 U.S. 668 (1996)........cccccceceeeseeeeeereees 29

Burson v. Freeman, 504 U.S. 191 (1992).............c00c0008 34

Crawford-El v. Britton, 523 U.S. 574 (1998) .............. 29

Doe v. Banos, 713 F. Supp. 2d 404 (D.N.J. 2010)........ 24

Fishman v. Schaffer, 429 U.S. 1325 (1976) ................ 24

Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md.

SUITED |, asssucuguniicenistitaantichtas dadehdimadainslboninemaaaaaeitantareteien = Fe

Gaffney v. Cummings, 412 U.S. 735 (1973)..........06. 32

Gill v. Whitford, No. 16-1161 .........--.c0-c-.eeeeceeceeeeeneeeenees 7

Gorrell v. O’Malley, No. WDQ-11-2975, 2012 WL

226919 (D. Md. Jan. 19, 2012) ..............0..00--sceceeeeeeres 2

Growe v. Emison, 507 U.S. 25 (1993)..............0000 30, 31

Hartman v. Moore, 547 U.S. 250 (2006) ......... 20, 21, 22

Johnson v. De Grandy, 512 U.S. 997 (1994)............4. 28

League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006)............0.cccee 14, 16, 21, 22

Maryland v. King, 567 U.S. 1301 (2012) ........c00.se0e00 25

TABLE OF AUTHORITIES — Continued

Page

Meese v. Keene, 481 U.S. 465 (1987) .........--2ccceseeeeeeees 29

Mt. Healthy City Board of Education v. Doyle,

ADD US. B74 (1977) .....c0r.ccccccscsscccesscccceccessccsesccscoeres 20

Nevada Comm’n on Ethics v. Carrigan, 564 U.S.

117 (BOLL) ..........cccecesvccerccecescverscccesserereoncnccssesessorssees 27

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,

ABE U.S. 1345 (1977).....ccccccrescccrsccrerccsersevcccssesrersees 25

Olson v. O’Malley, No. WDQ-12-0240, 2012 WL

7164421 (D. Md. Mar. 6, 2012)........-...ceceeeseecerneneeterens 2

Preston v. Bd. of Trs. of Chicago State Univ., 120

F. Supp. 3d 801 (N.D. Ill. 2015).........:-eceeeeeeeesesees 24

Railway Express Agency v. United States, 82

S. Ct. 466 (1962) ........cccceceecceesseeeeeeeeseneeereceeeeneeeeercees 10

Rutan v. Republican Party of Ill., 497 U.S. 62

(TBBO) ....ccccrcrecererescoreecsosevcorersereracneccsserecnensosseeses 26, 29

Shady v. Tyson, 5 F. Supp. 2d 102 (E.D.N-Y.

STII... cccccussensousémeepassienessensabvorsnebsouuaeinebseseoseraeeenee 25

Shapiro v. McManus, 136 S. Ct. 450 | SSE 5,6

Suarez Corp. Indus. v. McGraw, 202 F.3d 676

(4th Cir, 2000)..........20:ccececsecceesseseeseeennertenecenensnennenans 15

Thornburg v. Gingles, 478 U.S. 30 (1986).......-...-..08 12

United Fuel Gas Co. v. Public Service Comm'n,

QTE U.S. B22 (1929) .....cecccesrccccecsrerecrecrenseceeseeseennesees 10

Utah Gospel Mission v. Salt Lake City Corp., 316

F. Supp. 2d 1201 (D. Utah 2004)...........--:sssesseeree 24

Vieth v. Jubilerer, 541 U.S. 267 (2004) ............0 passim

TABLE OF AUTHORITIES — Continued

Page

Whitford v. Gill, 218 F. Supp. 3d 837 (D. Wis.

I ctichictininieieneithipnsmneadidicqunidanaataidiicogeds 12, 13, 16, 19

Winter v. Natural Res. Def. Council, Inc. , 555 U.S.

BI ddbks uses dacnciskacniiobeccsnopcnsiembichandcetseandaoeahnonibdipikassinwias 23

CONSTITUTIONAL PROVISIONS

RE FD GID acesccecccescecscccesocceressccosoncssnsencs 26

ha coal aati passim

STATUTES

a ceacnpalediaeeniciagniaiionmidin 9

2011 Md. Laws, Spec. Sess. ch. 1, codified as Md.

Code Ann., Elec. Law §§ 8-701 — 8-709 (2014

SSAC RR 2 aA ES ee 5 Oe 1

Md. Code Ann., Elec. Law § 11-402(a) ............00......4. .28

Md. Code Ann., Elec. Law § 11-402(b) ....................... 28

Md. Code Ann., Elec. Law § 11-402(d)(1)(i)................ 28

RULES

EERE UES er een ae ee mn meee 6

CE Sos ansunicnceneseentinpeeeieinianiaalta 7

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

11A C. Wright, A. Miller, & M. Kane, Federal

Practice and Procedure § 2948.1 (2d ed.1995) ....... 23

Bill Turque & Jenna Portnoy, “Rep. John

Delaney Is Running for President in 2020,”

Washington Post (July 28, 2017) ..............:cceeeeeeeeees 23

Cook’s Partisan Voting Index....................cc00see+++: 15, 16

Jenna Portnoy, “GOP Sees Rare Pick Up Oppor-

tunity in Maryland, with Open Seat in Pur-

plish District,” Washington Post (Oct. 23,

Saale CN RE ei 0 as Eid SE a 23

National Committee for an Effective Congress’s

Democratic Performance Index .....................++- 15, 16

“Regression” Merriam-Webster.com..............:ssessess0+ 15

State Board of Elections’ website, http://www.

elections.state.md.us/elections ..............0ccceesccceeseseres 5

State Board of Elections, “Using Election Data

MOUNT sx-scssciteiscksuanstacipeheuiasecaitaia nla pianemetaainiaimibinamesaletindaanieitin 28

MOTION TO AFFIRM

Appellees, defendants below, Linda H. Lamone,

Maryland’s State Administrator of Elections, and Da-

vid J. McManus, Jr., Chair, State Board of Elections,

respectfully move to affirm the three-judge district

court’s denial of plaintiffs’ motion for preliminary in-

junction filed 317 years after the case commenced. In

declining plaintiffs’ request to enjoin preliminarily

Maryland’s redistricting statute, enacted in 2011 and

approved by voters in a 2012 referendum, the court did

not abuse its discretion by concluding that such ex-

traordinary relief is unwarranted because the record

does not contain evidence sufficient to support a find-

ing that plaintiffs are likely to succeed on the merits of

their claim.

STATEMENT

1. This appeal arises from one of several chal-

lenges to the redistricting plan that the Maryland leg-

islature enacted in 2011 to satisfy the constitutional

requirement that congressional districts be reappor-

tioned to achieve exact population equality in light of

the 2010 decennial census. 2011 Md. Laws, Spec. Sess.

ch. 1, codified as Md. Code Ann., Elec. Law §§ 8-701 —

8-709 (2014 Supp.). In June 2012, this Court summar-

ily affirmed a three-judge district court’s decision up-

holding the plan and rejecting a challenge that

included both racial gerrymandering and partisan ger-

rymandering claims. Fletcher v. Lamone, 831 F. Supp.

2d 887 (D. Md. 2011), aff’d, 567 U.S. 930 (2012). In

Fletcher, the three-judge court rejected a claim that

“the redistricting map was drawn in order to reduce

the number of Republican-held congressional seats

from two to one by adding Democratic voters to the

Sixth District.” Jd. at 903-04. Other challenges to the

2011 plan have also been rejected. See Gorrell v. O’Mal-

ley, No. WDQ-11-2975, 2012 WL 226919 (D. Md. Jan.

19, 2012); Olson v. O’Malley, No. WDQ-12-0240, 2012

WL 764421 (D. Md. Mar. 6, 2012).

2. The 2011 plan eliminated a significant geo-

graphic anomaly exhibited by Maryland’s 1991 and

2002 congressional redistricting plans. Since 1991,

Maryland’s First District had contained portions of

both the Eastern and Western shores of the Chesa-

peake Bay, separated by no less than four miles of wa-

ter and connected only by the Chesapeake Bay Bridge.

This bizarre configuration was the result of an incum-

bent-protection effort in the 1991 redistricting cycle

intended “to accommodate the desires of U.S. Repre-

sentative Bentley,” a Republican, who sought to have

“‘a district she believed she could win [in] the next

election.” Anne Arundel County Republican Cent.

Comm. v. State Admin. Bd. of Election Laws, 781

F. Supp. 394, 408 (D. Md. 1991), aff’d, 504 U.S. 938

(1992) (Niemeyer, J., dissenting). To eliminate the Bay

Bridge crossing, the 2011 plan extended the northern

portion of the First District westward into precincts

formerly contained within the Sixth District. The 2011

plan also responded to a request from the Maryland

Legislative Black Caucus to reduce from three to two

the number of districts in Prince George’s County,

Fletcher, 831 F. Supp. 2d at 902, a change that required

shifts in population in the Fourth District and the

Eighth District, which borders the Sixth District. The

2011 plan also retained the two Maryland § 2 Voting

Rights Act districts, the Seventh District and the

Fourth District, as majority-minority districts, which

necessitated shifts elsewhere to accommodate popula-

tion changes in those districts.

These decisions caused shifts in the boundary of

the Sixth District, which lost population to the First

District and had to be realigned with the bordering

Eighth District to accommodate changes in the Fourth

District. When drawing the Sixth and Eighth Districts,

Maryland decisionmakers, including the Governor, the

Speaker of the House, and the Senate President,

sought to keep intact a corridor along I-270, an area of

Maryland experiencing rapid population growth be-

cause of the expansion of the Washington, D.C. suburbs

and the biotech industry in Frederick City. Dkt. 186-1,

20 (collecting evidence). In addition to these various

decisions impacting the configuration of the Sixth Dis-

trict, Governor O’Malley acknowledged that, “all

things being legal and equal,” Dkt. 186-2, 47:3, he was

looking for a map that would “make it more likely ra-

ther than less likely that a Democrat .. . is able to pre-

vail in the general election.” Dkt. 186-2, 43:7.

The final map was the culmination of a months-

long process of public hearings, consideration of third-

party drafts, and drafting work undertaken by staffers.

Dkt. 104, J 18-23, 26; Dkt. 186-2, 53:12-54:7. Mary-

land’s congressional delegation created draft maps for

submission to Maryland state decisionmakers with the

help of a consultant, but there is no evidence that the

consultant, Eric Hawkins, drew the final map. J.S. App.

18a-19a. The final map differed from the congressional!

delegation’s submission in important ways. Unlike the

congressional delegation’s plan, the map developed by

staffers to the Maryland decisionmakers (1) kept in-

tact Washington County and the cities of Hagerstown,

Westminster, and Frederick (with the exception of an

unintentional split at a fork in the road with zero pop-

ulation); (2) kept the number of districts in Prince

George’s County to just two by drawing the Third and

the Eighth Districts so that they did not include popu-

lation from Prince George’s County; (3) kept the num-

ber of districts in Montgomery County to three by

drawing the Fourth District so that it did not include

population from Montgomery County; and (4) made

the I-270 corridor a major feature of the Sixth District,

connecting Frederick with Montgomery County. Dkt.

186-11, {J 8-9.

3. After its enactment, the congressional redis-

tricting statute was petitioned to statewide referen-

dum, and a sizable majority of voters approved the

legislation in the November 2012 election. J.S. App.

8a. The plan won voters’ support in areas throughout

the State, with majorities favoring the plan in 22 of

Maryland’s 24 counties, including three of the five

counties that, prior to the 2011 redistricting, were

located wholly or partly within Maryland’s Sixth

District. Republican Congressman Roscoe Bartlett

had won in those same three counties, Frederick, Alle-

gany, and Washington, in every congressional general

election since 1992.* The Sixth District, as reappor-

tioned in the 2011 plan, has become the sole focus of

plaintiffs’ challenge, after multiple amendments of

their complaint.

4. The plaintiffs, who now include seven self-

identified Republicans who lived in Maryland’s Sixth

District under the former redistricting plan, first

brought this action in November 2013, more than a

year after the first election was held under the 2011

plan. The initial complaint, and the amended com-

plaint they subsequently filed, did not include the First

Amendment retaliation theory on which they now rely.

No preliminary relief was sought in conjunction with

the filing of the original complaint or the amended

complaint. After this Court issued its decision revers-

ing dismissal of the first amended complaint and re-

manding, Shapiro v. McManus, 136 S. Ct. 450 (Dec. 8,

2015), the plaintiffs waited four months, until March

2016, before filing a second amended complaint, which

for the first time set forth their First Amendment re-

taliation claim. J.S. 7 (acknowledging that plaintiffs’

First Amendment retaliation claim was first “clarified”

1 See http-//www.elections.state.md.us/elections/2012/results/

general/gen_detail_qresults_2012_ 4 0005S-.htm] (last visited

Sept. 8, 2017).

2 See Congressional election results available at the State

Board of Elections’ website, http://www.elections.state.md.us/

elections (last visited Sept. 8, 2017).

in a second amended complaint filed after remand

from Shapiro v. McManus). Again, the plaintiffs did not

accompany their second amended complaint with a re-

quest for preliminary injunction or other preliminary

relief. As articulated in their second amended com-

plaint, plaintiffs’ revised challenge asserts that the

drafters of the 2011 plan “purposefully and success-

fully flipped [District 6] from Republican to Demo-

cratic control” by “moving the [Dlistrict’s lines by

reason of citizens’ voting records and known party af-

filiations,” thereby “diluting the votes of Republican

voters and preventing them from electing their pre-

ferred representatives in Congress.” J.S. App. 87a.

The district court denied defendants’ motion to

dismiss the second amended complaint in August

2016. J.S. App. 80a-111a. Still, no request for prelimi-

nary relief followed that decision. Instead, the parties

embarked upon discovery, a period that included (1)

plaintiffs’ requests for depositions of sitting legis'ators

to take place during Maryland’s 90-day legislative ses-

sion (Dkt. No. 112-1, 15-16); (2) plaintiffs’ notice of Rule

30(b\(6) deposition of corporate designee, which was

quashed by the district court, there being no defendant

that is a corporation (Dkt. No. 145, 2); and (3) plain-

tiffs’ motion for sanctions, which was withdrawn by

plaintiffs after it was fully briefed (Dkt. No. 164).

Near the same time that the parties completed

seven months of fact and expert discovery, on May 31,

2017, the plaintiffs filed a motion for preliminary in-

junction and to advance and consolidate the trial on

the merits, or in the alternative, for summary judg-

ment. J.S. App. la. During the pendency of that motion,

the district court, on its own initiative, requested brief-

ing on whether a stay should be entered in light of this

Court’s orders in Gill v. Whitford, No. 16-1161. J.S. App.

la-2a.

5. After oral argument on the preliminary in-

junction motion and the appropriateness of a stay, the

district court denied the request for preliminary in-

junction and entered a “stay pending further guidance”

from this Court’s disposition of Gill. J.S. App. 2a. The

district court expressly declined to dispose of the par-

ties’ fully briefed cross-motions for summary judgment

or plaintiffs’ request to accelerate the trial on the mer-

its under Rule 65(a)(2). J.S. App. 2a n.1.

a. The majority of the three-judge court held that

the plaintiffs “have not demonstrated that they are en-

titled to the extraordinary (and, in this case, extraordi-

narily consequential) remedy of preliminary injunctive

relief” because they had “not made an adequate pre-

liminary showing that they will likely prevail” on the

merits of their First Amendment claim. J.S. App. 2a

(parentheses and emphasis in original). The district

court explained that the plaintiffs can succeed on the

merits of their claim “only if” they prove “Roscoe Bart-

lett would have won reelection in 2012 had the prior

map remained intact... .” J.S. App. 25a (emphasis in

original). To confirm the plaintiffs’ own understanding

that this is indeed their burden, the district court

quoted the following excerpt from their briefing: “[O]ur

burden is to show that the purposeful dilution of

Republican votes in the Sixth District was a but-for

cause of the routing of Roscoe Bartlett in 2012 and of

the Republican losses in 2014 and 2016.” J.S. App. 25a

(brackets in original).

The district court stated it was “not yet persuaded”

that plaintiffs are likely to succeed in carrying their

burden of proving that it was the alleged “gerrymander

(versus a host of forces present in every election) that

flipped the Sixth District, and, more importantly, that

will continue to control the electoral outcomes in that

district.” J.S. App. 17a (parentheses in original). The

majority deemed this showing of causation indispensa-

ble because, “if an election result is not engineered

through a gerrymander but is instead the result of

neutral forces and voter choice, then no injury has oc-

curred.” J.S. App. 24a. That is, “[i)f the loss is instead a

consequence of voter choice, that is not an injury. It is

democracy.” J.S. App. 25a (emphasis in original).

b. In denying the preliminary injunction, the dis-

trict court made “preliminary” findings (J.S. App. 6a),

which included the following: After enactment of the

plan, “a plurality (44.8%) of voters in the Sixth District

were registered Democrats, while 34.4% of voters were

registered Republicans,” and “20.8% of voters were

registered with neither major party.” J.S. App. 19a-20a.

In the 2012 congressional election, the first held under

the 2011 redistricting plan (and the same general elec-

tion that resulted in approval of the plan), “Democrat

John Delaney defeated incumbent Republican con-

gressman Roscoe Bartlett by a 20.9% margin.” JS.

App. 20a. “However, in the U.S. Senate election

conducted that same cycle, Democrat Ben Cardin car-

ried the Sixth District by just 50% of the vote, despite

winning 56% of the vote statewide.” /d.

The district court also found that Bartlett had “un-

derperformed the other seven members of Maryland’s

congressional delegation in fundraising leading up to

his defeat in the 2012 election.” J.S. App. 21a. In addi-

tion, the district court found facts showing that the

2014 election results further demonstrated the com-

plex and variable views of the Sixth District’s elec-

torate. That is, “Republican challenger Dan Bongino

nearly unseated Congressman Delaney even though

Bongino resided outside the Sixth District” and “oper-

ated at a financial disadvantage vis-a-vis Delaney,”

and in the same election, “Republican gubernatorial

candidate Larry Hogan won 56% of the vote in the

Sixth District, besting his Democratic rival by 14 per-

centage points.” J.S. App. 21a.

6. On August 25, 2017, the plaintiffs filed a no-

tice of appeal of the order denying a preliminary in-

junction. That interlocutory order is the only ruling

properly before this Court under 28 U.S.C. § 1253.

ARGUMENT

I. The Three-Judge District Court Appropri-

ately Exercised Its Discretion in Denying

Plaintiffs’ Belated Preliminary Injunction

Motion.

““‘An order of a court of three judges denying an

interlocutory injunction will not be disturbed on ap-

peal unless plainly the result of an improvident exer-

cise of judicial discretion.’” Aberdeen & Rockfish R. Co.

v. Students Challenging Regulatory Agency Procedures

(SCRAP), 409 U.S. 1207, 1218 (1972) (quoting United

Fuel Gas Co. v. Public Service Comm’n, 278 U.S. 322,

326 (1929)); see also Railway Express Agency v. United

States, 82 S. Ct. 466 (1962) (Harlan, J., in chambers).

Faced with a preliminary injunction motion filed 3%

years after the case commenced, and 5 years after en-

actment of the challenged statute, the district court

would have acted well within its discretion if it had

opted to deny the injunction based solely on its tardi-

ness. But even with the benefit of a protracted period

of discovery that preceded their motion for preliminary

relief, plaintiffs were unable to provide sufficient evi-

dence that the electoral losses of their preferred candi-

dates resulted from the enactment of the 2011

redistricting plan. Instead, the plaintiffs resorted to in-

sisting (Dkt. No. 177-1, 33) that they were free to dis-

regard the three-judge court’s earlier opinion imposing

on them the burden to prove “but-for” causation. J.S.

App. 103a, 104a. They accented the disavowal of their

burden of proof with late-breaking attempts to intro-

duce sociological statistics with no expert witness

analysis. Dkt. No. 191, 12-13. Given these deficiencies

in the record plaintiffs produced in support of their re-

quest for relief, the three-judge court’s denial was any-

thing but “improvident.” SCRAP, 409 U.S. at 1218. The

three-judge court’s conclusion, supportable on multiple

bases, should be affirmed.

A. The Plaintiffs Failed to Provide Any

Evidence That Maryland Decisionmak-

ers Caused Them Any Constitutionally

Cognizable Harm.

Having failed to come forward with evidence to

carry their burden, plaintiffs now disclaim the neces-

sity to do so. They alleged in their second amended

complaint that “‘but for the cracking of the district un-

der the Plan,’ ‘Republican voters in the former [Sixth]

District would have been able to elect a Republican

representative in 2012 and 2014.’” J.S. App. 110a-111a.

As noted by the three-judge court, plaintiffs further

acknowledged in their filings, “‘{O]ur burden is to

show that the purposeful! dilution of Republican votes

in the Sixth District was a but-for cause of the routing

of Roscoe Bartlett in 2012 and of the Republican losses

in 2014 and 2016.’” J.S. App. 25a. But even after the

benefit of seven months of discovery, plaintiffs could

not provide evidence to meet this acknowledged bur-

den. J.S. App. 26a-27a. Before this Court, plaintiffs now

seek to shirk the evidentiary burden the three-judge

court imposed, the same burden that plaintiffs them-

selves previously recognized as theirs to bear. They

specifically deny (J.S. 24-27, 29) that the injury they

must prove is the “demonstrable and concrete adverse

effect” identified by the three-judge court, both in its

ruling on the motion to dismiss (J.S. App. 106a-107a)

and its ruling on the motion for preliminary injunction

(J.S. App. 17a, 22a, 25a), namely, that the legislature’s

alleged intentional partisan “vote dilution” in drawing

the Sixth District’s boundaries “has actually altered

the outcome of an election” (J.S. App. 107a; see J.S. App.

24a (“[I]n the redistricting context, the government’s

‘action’ is only ‘injurious’ if it actually alters the out-

come of an election (or otherwise works some tangible,

measurable harm on the electorate.)”)). Instead, plain-

tiffs have resorted to a new formulation that dimin-

ishes their burden to proving some unspecified level of

“vote dilution,” a term that they have steadfastly re-

fused to define, quantify, or situate in the context of a

partisan gerrymandering claim. J.S. 26.

Tellingly, plaintiffs have proffered no social-sci-

ence measure, or data supported by expert explication,

describing the extent to which they allege their votes

were diluted. J.S. 21-22; 24-28. Also absent from plain-

tiffs’ repeated cries of “vote dilution” is any explanation

of “social and historical conditions” in Maryland or the

Sixth District that would cause inequality in the abil-

ity of Democrats and Republicans to elect their pre-

ferred representatives. Contrast Thornburg v. Gingles,

478 U.S. 30, 47 (1986) (vote dilution impermissible

when it “interacts with social and historical conditions

to cause an inequality in the opportunities enjoyed by

black and white voters to elect their preferred repre-

sentatives.”). And unlike in Whitford v. Gill, there is no

assertion in this case that a minority can subvert the

will of the majority under the Maryland 2011 congres-

sional map. Whitford v. Gill, 218 F. Supp. 3d 837, 902

(D. Wis. 2016). The plaintiffs’ allegation of vote-dilution

injury is really no more than a complaint that “each

discernible group, whether farmers or urban dwellers

or political parties, must have representation equiva-

lent to its numbers,” but what the Constitution re-

quires is that each individual have an equally

weighted vote. Vieth v. Jubilerer, 541 U.S. 267, 290

(2004) (plurality op.). A mere change in a district’s pop-

ulation, when the one-person one-vote mandates have

been fulfilled, cannot support a constitutional harm.

An examination of the electoral circumstances at

work in the 2012 election demonstrates that plaintiffs’

real complaint is that their preferred candidate did not

win as he had in the past, but that individual candi-

date’s loss is not traceable to any government action.

First, although the change in the Sixth District’s

borders resulted in a plurality of registered Democrats

residing within the district, 20.8% of district residents

claimed no major party affiliation. J.S. App. 19a-20a.

Plaintiffs’ experts offered no analysis concerning the

voting preferences or behavior of this significant group

of unaffiliated voters. Dkt. 186-41, 50:3-12.

Second, although challenger Democrat John

Delaney prevailed in the 2012 congressional election,

then-incumbent Congressman Bartlett’s fundraising

efforts underperformed all other members of the

Maryland congressional delegation, including Republi-

can Andy Harris. J.S. App. 21a.

Third, results from other races in 2012 and from

the 2014 election, including incumbent Congressman

Delaney’ mere 1.5% margin in the 2014 election,

demonstrate that Republicans still enjoy electoral suc-

cesses and the possibility of success within the Sixth

District. J.S. App. 20a-21a.

Fourth, not all of the changes in the district’s

boundaries and attendant reassignment of popula-

tions resulted from an intention or purpose specific to

the Sixth District. Some borders of the Sixth District

resulted from legislative choices to eliminate the Ches-

apeake Bay crossing in the First District and to confine

the Fourth District to Prince George’s County. If one

considers only the interchange of population between

the former Sixth District and the former Eighth Dis-

trict, there was a combined net change of 58,486 regis-

tered Republicans moved out of and registered

Democrats moved into the former Sixth District. Dkt.

177-19, 13. That number of net reassigned voters is

smaller than the 64,608 votes that separated candi-

dates Delaney and Bartlett in the 2012 election. Jd.;

Dkt. 186-31, 2.

Plaintiffs have never presented evidence of “the

feared inequity” that they allege arose as a concrete

result of the 2012 election. League of United Latin

American Citizens v. Perry, 548 U.S. 399, 420 (2006)

(Kennedy, J.) (hereinafter “LULAC”). Plaintiffs have

instead relied on a talismanic recitation of the phrase

“vote dilution” (J.S. 26), with no suggestion of how it

might be quantified or, if it could be measured, what

amount of vote dilution would “‘be more than de mini-

mis or trivial’” (J.S. App. 103a (quoting Suarez Corp.

Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)).

Plaintiffs offered no retrospective analysis of any

election results in the Sixth District and no analyses

at all of the voting behavior of former residents of the

Sixth District who now reside in the Eighth District (a

group including several of the plaintiffs). Because of

the myriad complicating factors discussed above,

plaintiffs’ reliance on raw population numbers cannot

support any claimed vote dilution. The only other

showing made by plaintiffs with regard to their con-

ception of vote dilution consisted of the Cook’s Partisan

Voting Index (“PVI”) and the National Committee for

an Effective Congress’s Democratic Performance Index

(“DPI”) metrics.* Each of these two metrics, using

’ Plaintiffs state that these two metrics “rely on regression

models of voter history.” J.S. 12. To describe something as a “re-

gression model” is to imply that some variable is predicted from

other, known, variables. See “Regression” Merriam-Webster.com,

accessed October 16, 2017, https://www.merriam-webster.com/

dictionary/regression (“a functional relationship between two or

more correlated variables”). But there is no evidence to support

the proposition that either of plaintiffs’ proffered metrics is pre-

dictive rather than descriptive; the portions of deposition cited by

plaintiffs reveal only that voter history is one component of the

unknown model for DPI. See J.S. 12. PVI was described by plain-

tiffs below as “calculated by comparing the district’s average

Democratic or Republican Party’s share of the two-party presi-

dential vote in the past two presidential elections to the nation’s

average share of the same.” Dkt. 177-51, 2. Moreover, no evidence

in the record suggests that any Maryland decisionmaker created

different methods, attempts to describe the partisan

characteristics of a district by using results of past

elections. While plaintiffs also offer ranges of likeli-

hood in future elections to accompany the metrics at

pages 12 and 13 of their jurisdictional statement, there

is no evidence that these predictive values were con-

sidered by state decisionmakers. Moreover, these

ranges of likelihood were not introduced below until

they appeared in an attachment to plaintiffs’ reply in

support of the motion for preliminary injunction (Dkt.

191-8). These alleged changes in likelihood values fail

to describe what actually happened in the Sixth Dis-

trict in the 2012 election. Thus, these statistics repre-

sent nothing more than assertions of allegedly “unfair

results that would occur in a hypothetical state of af-

fairs.” LULAC, 548 U.S. at 420 (Kennedy, J.).

Even plaintiffs’ own metrics of hypothetical re-

sults fail to demonstrate real harm. In the run-up to

the 2012 election, at least nine Republicans held seats

in districts with PVI and DPI metrics similar to the

Sixth District or with an electorate that leaned even

more Democratic. Dkt. 186-1, 35; Dkt. 177-52, 4. And

plaintiffs’ myopic reliance on predictive metrics ig-

nores the myriad election-specific factors that influ-

ence voters. In 2012, Congressman Delaney’s margin

of victory over Roscoe Bartlett was 20.9%, a decisive

any regression models that used these measures, unlike the rec-

ord evidence in Whitford v. Gill, where the state defendants used

regression models to make custom predictions of draft district

performance in an effort to maximize partisanship. 218 F. Supp.

3d at 847-52.

victory not consistent with the predicted competitive

nature of the district. In that election, Congressman

Delaney won Washington County, which was part of

both the former and current Sixth District and which

had been carried by Roscoe Bartlett in the prior 10

elections. Dkt. 186-31, 2; 186-28, 2. The plaintiffs

simply make no effort to explain the extent to which

the 2012 election results reflected a changing political

landscape in Western Maryland, including an increas-

ing number of Democratic voters in Frederick County.

Dkt. 186-1, 14-16 (collecting evidence).

Nor do plaintiffs offer any analysis of the 2014

election, in which Congressman Delaney’s margin of

victory over a lackluster candidate was narrowed to a

mere 1.5%, and a Republican candidate for Governor

received well over 50% of votes cast in the Sixth Dis-

trict. As the three-judge court noted, if an electoral loss

is not attributable to “constitutionally suspect activ-

ity,” but “is instead a consequence of voter choice, that

is not an injury. It is democracy.” J.S. App. 25a (empha-

sis in original). The three-judge court acted well within

its discretion in declining to find a likelihood of success

on the merits where plaintiffs provided no evidence

* For the first time, plaintiffs have raised election results

that occurred in Carroll County, which was part of the former

Sixth District. J.S. 28 n.2. This evidence was not presented to the

three-judge court, and plaintiffs have continued to offer no evi-

dence or analysis to suggest that Carroll County’s removal from

the Sixth District resulted from any reason other than the neutral

decisions of the legislature to eliminate the Chesapeake Bay

Bridge crossing and consolidate the territory of the Fourth Dis-

trict.

that changes in the Sixth District caused Congress-

man Bartlett's electoral loss in 2012.

Political participation has also suffered no chilling

effects in the Sixth District since the 2011 map was

adopted. Republican registration uniformly increased

in the counties contained in both the former and cur-

rent Sixth District and general election turnout among

Republicans increased in some years and outpaced

Democratic turnout in all years.° Dkt. 186-1, 48 (col-

lecting evidence). All of the plaintiffs testified that they

were undeterred from voting or actually increased

their political activity as a result of the 2011 redistrict-

ing map. Id. at 45-46. The only testimony to the con-

trary was appropriately disregarded because it is

inadmissible hearsay describing conversations with

non-witnesses as recounted by one of the plaintiffs.

Dkt. 177-53, 61:2-64:2.

The absence of any chilling effect is also supported

by logic. Where a single seat is no longer secured for

one party, but is instead newly competitive, expressive

electoral activity, including voting, has potential re-

ward. The change, even in likelihood, from a sure-thing

Republican district to a “likely” Democratic district

distinguishes the Sixth District’s electoral context en-

tirely from that of the Wisconsin legislature. In Wis-

consin, there was record evidence that even when

® It is entirely unclear how turnout in Republican primaries

is relevant to the question of chilling. J.S. 13. The alleged expres-

sive conduct at issue in this case, as far as may be discerned,

is expressed support for Republican candidates in general elec-

tions.

Democratic voters actually secured the statewide vote

majority they saw little electoral gain. Whitford, 218

F. Supp. 3d at 901. Such an environment might sup-

port chilling, because increased efforts to vote would

not yield results. In contrast, one would reasonably ex-

pect that when faced with a competitive but winnable

district, residents will expend effort to support their

preferred candidate because of the possibility of elec-

toral success, even if a win is no longer guaranteed.

The increase in the district’s competitiveness effec-

tively means that each person’s vote matters more

than it did in elections held in the former Sixth Dis-

trict, when general election results tended to be a fore-

gone conclusion. Because the Sixth District’s

competitiveness increased under any measure, plain-

tiffs’ unsubstantiated claim of chilling defies logic.

There is no reason to believe that the reapportionment

of the Sixth District chilled the free speech of any rea-

sonable person. The three-judge court was well within

its discretion in finding that plaintiffs had not proved

likelihood of success on the merits.

B. The Three-Judge Court Appropriately

Assigned Plaintiffs the Burden to Prove

“But-for” Causation.

Plaintiffs were correctly required to prove a “pal-

pable and concrete harm” by demonstrating that the

alleged State conduct “has actually altered the out-

come of an election.” J.S. App. 106a, 107a. “[I]f an elec-

tion result is not engineered through a gerrymander

but is instead the result of neutral forces and voter

choice, then no injury has occurred.” J.S. App. 24a. In

the opinion denying the State’s motion to dismiss and

articulating the standard plaintiffs were required to

prove, the three-judge court’s majority relied on Hart-

man v. Moore, 547 U.S. 250 (2006), which dealt with

complex “but-for” causation scenarios. J.S. App. 103a

(quoting Hartman, 547 U.S. at 260, 256). The district

court’s opinion made no mention of the burden-shifting

framework set forth in Mt. Healthy City Board of Edu-

cation v. Doyle, 429 U.S. 274 (1977). J.S. App. 103a. In

the ruling denying plaintiffs’ motion for preliminary

injunction, the three-judge court’s majority correctly

recognized that Mt. Healthy did not contemplate a case

where injury was not conceded, there were multiple de-

cisionmakers, and there were multiple causes at work.

J.S. App. 24a.

A departure from Mt. Healthy was appropriate in

this case because the causal link between “retaliatory

animus and the plaintiff’s injury is . .. more complex

than it is in other retaliation cases.” Hartman, 547 U.S.

at 261. In Mt. Healthy, only one government decision

by one governmental body was at issue: the school

board’s decision whether to fire a teacher who engaged

in both protected speech and unacceptable conduct.

Mt. Healthy, 429 U.S. at 282-83. In Hartman, this

Court considered whether Mt. Healthy’s framework

could properly be applied where those who made the

operative decision at issue are not defendants to the

litigation, and the Court concluded that Mt. Healthy

could not be so applied. Hartman, 547 U.S. at 259-66.

When a_ constitutional tort requires proving

“retaliatory animus of one person and the action of an-

other,” id. at 262, additional work is required to ad-

dress the complexity “specifically” by “defining the

elements of the tort,” id. at 265.

Redistricting presents just such a scenario of com-

plex causation. “When the actor is a legislature and the

act is a composite of manifold choices,” “[e]valuating

the legality of acts arising out of mixed motives can be

complex.” LULAC, 548 U.S. at 418 (Kennedy, J.). The

2011 congressional redistricting process involved mul-

tiple decisionmakers, including the Governor, legisla-

tors; staff; stakeholders; United States congressional

representatives and their consultants and staff; and,

ultimately, the Maryland citizens who participated in

a referendum on the 2011 plan, by voting in the 2012

election. This diverse group engaged in multiple deci-

sions that culminated in the ultimate shape of Mary-

land’s 2011 redistricting map, from choosing which

district boundaries required adjustment, to determin-

ing which neighborhoods should be allocated to adjoin-

ing districts.

Narrowing the inquiry to a single district does

nothing to eliminate the complexity because the con-

figuration of a single district, in this case the Sixth Dis-

trict, is determined only at the conclusion of this multi-

stage, multi-actor decisionmaking process. In the 2011

process, the Sixth District’s boundaries were impacted

by, among other things, the decision to eliminate a

bridge-only crossing of the Chesapeake Bay that had

been introduced to the map in the 1991 redistricting

cycle (e.g., Dkt. 186-2, 72:7-8), and requests from Afri-

can-American constituents concerning the configura-

tion of the Fourth and the Eighth Districts, Fletcher,

831 F. Supp. 2d at 902. “[A)ffixing a single label” of

intent to those acts of redistricting is “hazardous,”

LULAC, 548 U.S. at 418 (Kennedy, J.), because it ob-

scures the valid projects of the legislature in enacting

its “conclusions about the proper balance of different

elements of a workable democratic government,” Vieth,

541 U.S. at 358 (Breyer, J., dissenting).

As discussed further below, the three-judge court

erred in finding a First Amendment retaliation claim

justiciable in the redistricting context. However, in set-

ting forth the claim it had identified, the three-judge

court appropriately “defin|ed] the elements of the tort,”

Hartman, 547 U.S. at 265, to impose on plaintiffs a bur-

den of proof that their preferred candidate “would have

won reelection in 2012 had the prior map remained in-

tact.” J.S. App. 25a.

C. Additional Reasons Support Denial of

the Preliminary Injunction.

The three-judge court correctly concluded that

there are “serious doubts about whether Plaintiff’s

alleged injury is likely to recur.” J.S. App. 27a. Not

only did Congressman Delaney nearly lose “control

of his seat in 2014 in a race against a candidate bur-

dened with undisputed geographic and financial limi-

tations,” id., but Delaney has subsequently announced

he will not seek reelection, leaving the Sixth District

an open race in 2018.° According to a recent report, Re-

publicans believe they have a good chance of winning

the election to fill the seat vacated by Delaney.’ If the

alleged harm (plaintiffs’ inability to elect their pre-

ferred Republican candidate) is unlikely to recur, there

is no future harm to remedy and an injunction should

not issue. See Winter v. Natural Res. Def: Council, Inc.,

555 U.S. 7, 22 (2008) (injunction appropriate only

where plaintiff is “likely to suffer irreparable harm be-

fore a decision on the merits can be rendered”) (quoting

11A C. Wright, A. Miller, & M. Kane, Federal Practice

and Procedure § 2948.1, p. 139 (2d ed. 1995)).

In addition to the lack of impending harm, it

would have been just as appropriate for the three-

judge court to conclude that denial of the requested re-

lief was warranted by plaintiffs’ own delay in bringing

suit and even longer delay before seeking a prelimi-

nary injunction. Plaintiffs’ motion for preliminary in-

junction involved the same “factors militating against

® Bill Turque & Jenna Portnoy, “Rep. John Delaney Is Run-

ning for President in 2020,” Washington Post (July 28, 2017),

https://www. washington post.com/local/md-politica/rep-john-delaney-

to-give-up-seat-wont-run-for-governor-weighs-white-house-bid/2017/

07/27/32f4cb9a-7 14a-11e7-8839-ec48ec4cae25_story.html]l?utm_

term=.2bac2bf95afl1.

? Jenna Portnoy, “GOP Sees Rare Pick Up Opportunity in

Maryland, with Open Seat in Purplish District,” Washington Post

(Oct. 23, 2017), https://www.washingtonpost.com/local/md-politics/

gop-sees-rare-pick-up-opportunity-in-maryland-with-open-seat-

in-purplish-district/2017/10/23/3 1c71770-b432-11e7-a908-a3470

754bbb9_ story.htm]?utm_term=.d2828f1b3f8b.

the extraordinary relief sought” that Justice Marshall

cited in denying a request for court intervention in

an election, after a three-judge court had denied the

relief due to laches. Fishman v. Schaffer, 429 U.S. 1325,

1330 (1976) (Marshall, J., denying application for relief

submitted to him as circuit justice). As was true in

Fishman, plaintiffs here “delayed unnecessarily in

commencing this suit” to challenge a statute that was

no longer “a new enactment” but one that had been

“utilized ... before” in a previous election, so that

plaintiffs “could have sued earlier.” In this case, the

plaintiffs compounded the consequences of their de-

layed filing of the complaint by waiting another 3%

years after suit commenced before requesting a prelim-

inary injunction. Moreover, just as in Fishman, “an in-

junction at this time,” after three elections under the

2011 plan, and so close to the beginning of the next

election cycle, “would have a chaotic and disruptive ef-

fect upon the electoral process.” Jd. These circum-

stances amply justify denial of plaintiffs’ request for

preliminary relief.

Other lower courts have reached a similar conclu-

sion, based on the reasonable inference that a plain-

tiff’s delay in seeking a preliminary injunction

evidences a lack of irreparable harm, even when First

Amendment claims are asserted, and even when the

delay was a matter of weeks or months. See Preston v.

Bd. of Trs. of Chicago State Univ., 120 F. Supp. 3d 801

(N.D. Ill. 2015); Doe v. Banos, 713 F. Supp. 2d 404

(D.N.J. 2010), aff’d on other grounds, 416 F. App’x 185

(3d Cir. 2010); Utah Gospel Mission v. Salt Lake City

Corp., 316 F. Supp. 2d 1201 (D. Utah 2004), aff’d, 425

F.3d 1249 (10th Cir. 2005); Shady v. Tyson, 5 F. Supp.

2d 102 (E.D.N.Y. 1998).

The three-judge court also would have acted well

within its discretion to deny the preliminary injunc-

tion on the basis that the balance of equities tipped in

favor of the state defendants or that denial was in the

public interest. “‘[A]ny time a State is enjoined by a

court from effectuating statutes enacted by represent-

atives of its people, it suffers a form of irreparable in-

jury.’” Maryland v. King, 567 U.S. 1301 (2012) (Roberts,

C.J., in chambers) (quoting New Motor Vehicle Bd. of

Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)

(Rehnquist, J., in chambers)). The 2011 redistricting

plan was not only duly enacted but has also been up-

held in a referendum vote, gaining majority support in

Allegany, Washington, and Frederick Counties, all of

which were within the former Sixth District. Dkt. 186-

8, 31. Moreover, plaintiffs sought an injunction on a

timeline that would have required that the State ex-

pend considerable resources to draw a new congres-

sional plan, pass the plan through the General

Assembly in a special session, and have it signed into

law by the Governor within two months. J.S. App. 31a.

After missing the plaintiff-imposed deadline for deci-

sion on the motion, the three-judge court reasonably

declined to enter a preliminary injunction when, “as a

practical matter, the Court would have been unable to

cure any constitutional ill in advarce of the 2018 mid-

terms even had it scheduled a trial at the earliest op-

portunity.” J.S. App. 32a.

Il. The Plaintiffs’ Claims Are Non-Justiciable.

A. Plaintiffs’ First Amendment Retaliation

Claim Is Non-Justiciable in the Context

of Congressional Redistricting.

Plaintiffs’ proposal to import standards for First

Amendment retaliation into the redistricting context

provides no “limited and precise rationale” capable of

correcting “an established violation of the Constitu-

tion.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring).

The three-judge court’s majority pronounced that “the

well-established standards for evaluating ordinary

First Amendment retaliation claims can also be used

for evaluating claims arising in the redistricting

context.” J.S. App. 102a. Under the district court’s con-

ception of “the First Amendment’s retaliation prohibi-

tion,” the government “may neither penalize a citizen

nor deprive him of a benefit because of his constitu-

tionally protected speech and conduct.” Jd. (citing

Rutan v. Republican Party of Ill., 497 U.S. 62, 74-76

(1990) (other citation omitted)). In addition to failing

to prove any such deprivation, plaintiffs have also

failed to provide any judicially manageable method for

applying that standard to a case involving a generally

applicable act of the legislature with difficult-to-

discern effects.

The three-judge court and the plaintiffs have

failed to address key questions which, when squarely

posed, reveal that the First Amendment retaliation

standard is no more judicially manageable than Equal

Protection Clause standards this Court has rejected

when used to address political gerrymandering claims.

First, what is the constitutionally protected speech at

issue? Plaintiffs and the three-judge panel have not

specified whether it is political affiliation, such as reg-

istration as Democrat or Republican, or voting history,

such as whether there is a history of voting for a Dem-

ocrat or Republican candidate.

The answer to the question of what constitutes the

protected speech matters in the retaliation context be-

cause, in a successful First Amendment retaliation

claim, the governmental actor knows about, considers,

and then acts expressly because of the conduct. But

there is an important practical limit at work in apply-

ing this standard to a redistricting case: an individ-

ual’s voting history is unknowable by the government.*

Registration does not convey that knowledge; people do

not necessarily vote for the candidate of the party for

which they have registered. Vieth, 541 U.S. at 288 (plu-

rality op.) (It “is assuredly not true” that “the only fac-

tor determining voting behavior at all levels is political

affiliation.”). If registration determined voting history,

Governor Larry Hogan, a Republican, could not have

been elected in Maryland, where registered Democrats

outnumber registered Republicans by nearly 2:1.

8’ Even in a context where voting is conducted publicly -- a

city council session — this Court has concluded that “the act of

voting symbolizes nothing,” it is not “an act of communication,”

and “the fact that a nonsymbolic act is the product of deeply held

personal belief— even if the actor would like it to convey his deeply

held personal belief — does not transform action into First Amend-

ment speech.” Nevada Comm’n on Ethics v. Carrigan, 564 US.

117, 126-27 (2011).

Election results also do not convey knowledge of

an individual voter’s voting history. The smallest geo-

graphic unit for which election results are known and

reportable is the precinct. Md. Code Ann., Elec. Law

§ 11-402(a), (d)(1)G).° Therefore, statistics based on

registration and election results do not convey to gov-

ernment actors the knowledge of protected speech that

is a necessary predicate for a retaliation claim.

Second, how has the government penalized a citi-

zen or deprived him of a benefit by placing him within

or without a district? Is the “dividing by district lines

and combining within them [that] is virtually inevita-

ble and befalls any population group of substantial

size” inherently harmful in some yet-to-be defined

way? Johnson v. De Grandy, 512 U.S. 997, 1015 (1994)

(discussing the problems with defining vote dilution in

single-member districts, where there is no mathemat-

ical difference in voting weight). No court had ever

reached that conclusion, prior to the decision of the

three-judge court below. Without such a harm, a retal-

iation claim cannot succeed. In other First Amendment

retaliation cases, the harm that befell the plaintiffs

was the result of a government action taken against

only the named plaintiffs, and the concrete, injurious

nature of the retaliatory government action was

® Absentee voting is not reportable at the precinct level in

Maryland. Md. Code Ann., Elec. Law § 11-402(b). The State Board

of Elections also does not report results at the precinct level for

early voting and provisional ballots. State Board of Elections, “Us-

ing Election Data Files,” http:/Avww.elections.state.md.us/

elections/using_election_data_instructions.html (last accessed

October 12, 2017).

understandable apart from any First Amendment con-

text. E.g., Crawford-El v. Britton, 523 U.S. 574 (1998)

(retaliation by destroying plaintiffs’ property in gov-

ernment custody); Bd. of County Comm’rs, Wabaunsee

County, Kan. v. Umbehr, 518 U.S. 668 (1996) (retalia-

tion by terminating government contract); Rutan, 497

U.S. at 79 (retaliation by deprivation of “promotion,

transfer, recall, and hiring”). Here, by contrast, the al-

leged injury of “vote dilution,” occurs by direct opera-

tion of a statute of general application that directly

affects all Maryland residents in the same way. No one

has claimed that the statute constitutes “any direct

abridgement of speech,” because no one has identified

a direct “burden on protected expression” that resulted

from its enactment. Meese v. Keene, 481 U.S. 465, 480-

82 (1987).

Merely recasting the claim semantically as a First

Amendment retaliation claim, when the true nature of

harm is not recognizable as an independent, indirect

injury, does nothing to avoid the problems that arise

when the alleged harm is viewed as an asserted “direct

abridgement of speech.” Meese, 481 U.S. at 482. The

three-judge court recognized that treating plaintiffs’

alleged “vote dilution” as a direct injury might privi-

lege the status quo ante, and thereby ensure that past

gerrymanders would be perpetuated. See J.S. App.

107a-108a. Though the court denied that its framing of

a First Amendment retaliation claim would create “a

presumption of fairness of the status quo ante” (J.S.

App. 107a), the court’s analysis does privilege the

group of residents who have enjoyed “past electoral

success in that district” (id.) by conferring on them a

potential claim that any change in the district’s status

quo constitutes retaliation against them. That kind of

preference for members of one partisan group cannot

be reconciled with this Court’s guidance to date. As the

Vieth plurality recognized, “a First Amendment claim,

if it were sustained, would render unlawful all consid-

eration of political affiliation in districting,” 541 U.S. at

294 (emphasis in original).

The lack of care in specifying the standard threat-

ens to curtail state legislative discretion beyond any-

thing that this Court has previously endorsed. The

Constitution “leaves with the States primary responsi-

bility for apportionment of their federal congressional

... districts.” Growe v. Emison, 507 U.S. 25, 34 (1993).

Serious, often difficult choices must be made in appor-

tionment.

Among these legislative choices is whether to seek

ways of making districts more, rather than less, com-

petitive. The choice between more competitive districts

or less competitive districts can have the effect of di-

luting the votes of subpartisan groups, such as radical

and moderate wings of the same political party. Vieth,

541 US. at 288. Plaintiffs’ argument that “vote dilu-

tion” in itself, as signified by a diminution in the pre-

dictive metrics they identify, suffices to prove

retaliatory intent and harm therefore produces incon-

gruous results. Republicans who identify as more mod-

erate in their views, for example, may have had their

votes diluted under past configurations of the Sixth

District and therefore welcome the new plan no less

than the district’s Democrats do. The fluidity of Amer-

ican political identification and ideological alignment

ensures that any line-drawing in this arena will inevi-

tably result in winners and losers potentially unseen

or unimagined by the courts and litigants engaged in

any particular conflict.

Another effect of adopting plaintiffs’ standard

would be to render it constitutionally impermissible

for a legislature to value competitive districts and to

reapportion in ways that make previously uncompeti-

tive districts less so. Rather, under plaintiffs’ preferred

regime, legislatures would be condemned to perpetu-

ate a district’s uncompetitive conditions indefinitely,

and would be prevented from increasing its competi-

tiveness even marginally, once an uncompetitive dis-

trict has been established. Under plaintiffs’ theory, it

would be proof of an unconstitutional, retaliatory in-

tent if (1) a legislature intended to increase competi-

tiveness by shifting a district to a composition that

predicted a Republican victory but remained in the

competitive range, and, as is certainly possible, (2) an

election in the newly drawn district is subsequently

won by a Democrat. That standard is simply too easy

for a claimant to satisfy; if it were adopted, legislatures

would be discouraged from ever choosing to foster com-

petitive elections by, for example, shifting district

boundaries across the map to increase the political di-

versity of each district. Nothing in the Constitution

precludes State legislatures from prioritizing competi-

tiveness of districts. On the contrary, this Court has re-

peatedly emphasized that the Constitution commends

to state legislatures the weighing of competing con-

cerns in the “highly political task” of redistricting, sub-

ject to requirements enacted by Congress. Growe, 507

U.S. at 33; see Vieth, 541 U.S. at 285 (plurality op.).

But plaintiffs’ standard is offended by a legislature’s

grappling with such “considerations |that] are insepa-

rable from districting and apportionment.” Gaffney v.

Cummings, 412 U.S. 735, 753 (1973). Plaintiffs’ stand-

ard is both unmanageable and constitutionally sus-

pect, because it would thwart any state legislature’s

efforts to exercise its best collective judgment of what

democracy requires, even when, as in this case, such

legislative action occurs at the express urging of con-

stituents.

B. The Three-Judge District Court Opin-

ion Demonstrates That the Standard Is

Not Manageable.

The three-judge court concluded that it would

need “evidence of a sufficient quantity to demonstrate

how and why voters who would have been included in

a neutrally drafted Sixth District voted in the 2012,

2014, and 2016 elections.” J.S. App. 26a. The three-

judge court speculated that such evidence might take

the form of “voter sampling or statistical data” or “affi-

davits.” Jd. But the very idea that the standard de-

mands such evidence demonstrates that it is not

judicially manageable. In the first instance, it is un-

clear who these hypothetical voters would have been

voting for. Is it a theoretical repeat of the match-ups

the actual Sixth District yielded? Such questions

would be purely speculative — it is altogether unclear

whether, for example, John Delaney would have chosen

to run in a differently configured Sixth District, or

whether he or even Roscoe Bartlett would have suc-

ceeded in the primary. See Dkt. 186-1, 28 (discussing

electoral circumstances of that race). Assigning hypo-

thetical residents based on actual votes cast in the

elections that took place in their districts would be just

as inappropriate, as explained by plaintiffs’ expert Dr.

Michael McDonald, because the different U.S. House

districts “did not have similar electoral circum-

stances.” Dkt. 177-19, 17.

Moreover, the three-judge court’s analysis offers

no guidance as to what criteria “a neutrally drafted

Sixth District” would need to fulfill in order to earn the

moniker “neutrally drafted.” Not only is guidance

missing from the opinion, but it is unclear how guid-

ance about a neutrally drafted district could ever be

developed without specifying how much partisanship

is too much. No such specification has been made by

the three-judge court or the plaintiffs below.

Even if any of these hard questions could be an-

swered (and it appears that they may be unanswera-

ble), there remain significant practical problems in

producing the evidence requested by the three-judge

court. There were more than 350,000 individuals who

resided in the former Sixth District and were assigned

to other districts in the 2011 redistricting process.

Even assuming that any “neutrally drafted Sixth Dis-

trict” would concern only the division between the cur-

rent Sixth District and the current Eighth District,

145,984 people were moved from the former Sixth to

the current Eighth District. Dkt. 177-19, 13. To find an-

swers to any of the above questions, thousands of peo-

ple would need to be interrogated about their past

voting behavior, including potentially the content of

their past votes. It is, at best, mere speculation to im-

agine that all such voters, or even a statistically signif-

icant sampling, would be willing to respond to an

inquiry into their voting, and thereby forfeit the cher-

ished confidentiality afforded by the secret ballot. See

Burson v. Freeman, 504 U.S. 191, 200-06 (1992) (dis-

cussing adoption of Australian ballot).

The three-judge court was correct that the type of

evidence needed to satisfy its articulated standard is

nothing less than actual, concrete evidence of how vot-

ers might have voted absent whatever movement of

district lines was brought about by whatever activity

is deemed constitutionally impermissible. But the

court below was incorrect in the original conclusion

that its standard presented a judicially manageable,

and therefore justiciable, claim. The three-judge court

should have joined Judge Bredar’s sole opinion that

plaintiffs are unlikely to succeed on the merits of their

claim because their claim is likely to be found non-jus-

ticiable, and therefore the motion for preliminary in-

junction was properly denied. J.S. App. 9a.

CONCLUSION

The judgment of the district court should be sum-

marily affirmed.

Respectfully submitted,

BRIAN E. FROSH

Attorney General of Maryland

STEVEN M. SULLIVAN*

Solicitor General

SARAH W. RICE

JENNIFER L. Katz

Assistant Attorneys General

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6325

ssullivan@oag.state.md.us

Attorneys for Appellees

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.