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

No. 17-333

In The

Supreme Court of the United States

,

-

O. JOHN BENISEK, EDMUND CUEMAN, JEREMIAH

DEWOLF, CHARLES W. EYLER, JR., KAT O'CONNOR,

ALONNIE L. ROPP, and SHARON STRINE,

Appellants,

Vv.

LINDA H. LAMONE, STATE ADMINISTRATOR OF

ELECTIONS, and DAVID J. MCMANUS, JR., CHAIRMAN,

MARYLAND STATE BOARD OF ELECTIONS,

Appellees.

©

¥

On Appeal From The United States District Court

For The District Of Maryland

&®

-

BRIEF OF AMICUS CURIAE COMMON CAUSE

IN SUPPORT OF APPELLANTS

,

a4

GREGORY L. DISKANT EMMET J. BONDURANT

JONAH M. KNOBLER Counsel of Record

PETER A. NELSON BENJAMIN W. THORPE

ELENA STEIGER REICH BONDURANT, MIXSON

PATTERSON BELKNAP & ELMorE, LLP

Wess & TYLER LLP oa One Atlantic Center

1133 Avenue of the Americas 1201 W. Peachtree Street

New York, New York 10036 Atlanta, Georgia 30309

gidiskant@pbwt.com bondurant@bmelaw.com

(212) 336-2000 (404) 881-4100

Counsel for Amicus Curiae Common Cause

COCKLE LEGAL BRIEFS (600) 225.6964

WWW COCKLELEGALBRIEFS COM

i

TABLE OF CONTENTS

Page

ECT BI I dsicccncnsecesecssincceccectsceces iii

INTEREST OF AMICUS CURIAE.....................+. 1

Common Cause v. Rucho: The District Court’s

ID scaticidncisdecrninedasntdvveseineriessictects 3

The Partisan Gerrymander of Maryland’s Sixth

COMAONRROMEE TIMBGIIEE 05. ccceiscccvcsecccccescccessosescesee 8

The Ruling of the Lower Court............................ 12

SUMMARY OF ARGUMENT .....................c0eeceee0 15

SE cote bivistaccnnttasttavineupintestenneaptinanicbitinien 18

I. The Democratic Gerrymander of the Sixth

District Violated the First Amendment.... 19

A. The gerrymander was content-based

and viewpoint-discriminatory ............. 21

B. Intentional vote dilution is a “manage-

able standard” for identifying the bur-

den on Appellants’ First Amendment

I eid iitnipiciconadasniisavatinishinsienddmenbentcess 24

C. The State failed to prove that the bur-

den on Appellants’ First Amendment

rights was justified by a compelling

I ND cilidictdisnasitcccaqrecenetictiviciments 26

Il. The District Court Erred in Holding That

Appellants Had Failed to Prove That

the Gerrymander Burdened Their First

ee i ivtdimestintcsckstonctestiniensocees 27

il

TABLE OF CONTENTS -— Continued

Page

A. The district court erred in holding that

the First Amendment permits a “de

minimis” amount of intentional vote

1 RACER SSUECUME Bric wave Etre Ta 27

B. The district court erred in holding that

intentional dilution of Appellants’

votes is not an injury unless it altered

the outcome of an election................... 28

C. The district court erred in placing the

burden of proof on Appellants to prove

the outcome of the election was not the

result of other factors........................+. 31

Ill. The Democratic Gerrymander of the Sixth

District was also Prohibited by Article I, § 2

and by Article I, § 4 of the Constitution ...... 32

I icinessevivenicebesnishintdnisaicbiiedtesmanncaneaes 33

ill

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) ....6, 21, 30

Arizona State Legislature v. Arizona Indep. Re-

districting Comm’n, 135 S. Ct. 2653 (2015)..... passim

Bd. of County Comm’rs v. Umbehr, 518 U.S. 668

Ries iaretnkestshesdtahins idibinieaienininenelagsamadbeladiadeniadaidcneonin 21

Bd. of Educ., Island Trees Union Free Sch. Dist.

v. Pico, 457 U.S. 853 (1982) ..............cccceeeeeee 17, 20, 21

Benisek v. Lamone, 241 F. Supp. 3d 566 (D. Md.

Se idiacaicintsinntnnsetlintnsiiiatinicignibidicmanigstasdtinas passim

Brandi v. Finkel, 445 U.S. 507 (1980).................000:000 21

Buckley v. Valeo, 424 U.S. 1 (1976) .............ccccceeeeeeeeees 23

Burdick v. Takushi, 504 U.S. 428 (1992) ...............00000.. 6

Clements v. Fashing, 457 U.S. 957 (1982) .................. 30

Clinton v. City of New York, 524 U.S. 417 (1998)....... 30

Common Cause et al. v. Rucho et al., No. 1:16-

CV-1026, 2018 WL 341658 (M.D.N.C. Jan. 9,

ease isiiascnicidehcettntasslsasaiidiantulesgiatsdiinidissimsapitesiaaidtioiedes passim

Cook v. Gralike, 531 U.S. 510 (2001) ...........ccccceceeeeeeee 16

Cox v. Larios, 542 U.S. 947 (2004) .........cccccccceeeeeeneneees 26

Davis v. Bandemer, 478 U.S. 109 (1986) .................... 26

Elrod v. Burns, 427 U.S. 347 (1976) ................4. passim

Gill v. Whitford, No. 16-1161 USS. ....................20002. 2,12

Harris v. Arizona Indep. Redistricting Comm’n,

es I III i ccnccinn i clnneescsiidutites enddbntemanandocs 26

iv

TABLE OF AUTHORITIES — Continued

Highmark Inc. v. Allcare Health Mgmt. Sys. Inc.,

es I i Ainiciscencireiteritneieciacanlesticennatiancnnets 18

Karcher v. Daggett, 462 U.S. 725 (1983) ... 18, 24, 26, 28, 29

Keyishian v. Bd. of Regents, 385 U.S. 589 (1967)....... 21

Kirkpatrick v. Priesler, 394 U.S. 526 (1969).... 18, 24, 28, 29

League of Women Voters of Florida v. Detzner,

ee a es HD inthcadieninirsancccanesctinminnencninedass 2

Lujan v. Defenders of Wildlife, 504 U.S. 555

FREE REED a ie dees a ee Pe 24, 29

LULAC v. Perry, 548 U.S. 399 (2006) ..............cceeeeeeeee 24

Matal v. Tam, 137 S. Ct. 1744 (2017)................... 21, 27

Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S.

ee iitsidestnisninntiatanssiinalinninividinnnis 15, 18, 21, 23, 31

N.E. Fla. Chapter of A.G.C. of Am. v. City of Jack-

sonville, 508 U.S. 656 (1993) ............cccccceeeseeeeees 17, 30

O'Hare Truck Serv. v. City of Northlake, 518 U.S.

PT anicoseiliccabsticdichtndlepinieidtemanssaemenssiasiniieentt 21

Perry v. Sindermann, 408 U.S. 593 (1972) ................. 21

Police Dep’t of Chicago v. Mosley, 408 U.S. 92

SSITIITITITTa Sistekcinpticn thei tbieisiinapbleliennadanantaideatdaaiinindaetiinsnpenetiite; 20

Quinn v. Millsap, 491 U.S. 95 (1989).................ce 30

Raleigh Wake Citizens’ Ass’n v. Wake Cty. Bd. of

Elections, 827 F.3d 333 (4th Cir. 2016)................... 26

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)......16, 20

Reynolds v. Sims, 377 U.S. 533 (1964)...... 16, 19, 24, 26

Vv

TABLE OF AUTHORITIES — Continued

Page

Romer v. Evans, 517 U.S. 620 (1996)............. .......... 26

Rosenberger v. Rector & Visitors of Univ. of Va.,

Se ey SI IED sccscsnccncestvencsesstnesenemandonen 17, 20, 21

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

(SERS Ere a Ca eM BED es close seen ee a 21, 27

Shapiro v. McManus, 136 S. Ct. 450 (2015).....2, 11, 12

Shapiro v. McManus, 203 F. Supp. 3d 579 (D.

an Ey Ai EELS ePaper) A CT le 12,14

Turner v. Foche, 396 U.S. 346 (1970) ...............cc.e00eee0 30

United Public Workers v. Mitchell, 330 U.S. 75

RS Ta RL eI Se eee ea ee Pee 20

United States Term Limits, Inc. v. Thornton, 514

I 7, 16, 32

United States v. Classic, 313 U.S. 299 (1941)............. 24

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

W. Va. State Bd. of Educ. v. Barnett, 319 U.S. 624

UI sh sedaiatieiaddbstibhcscratahidilchiiesahsantiabimamsstbcainipieiaimassiaes 19

Ward v. Rock Against Racism, 491 U.S. 781

rE ARES SER ARNE So. Cae an aR er PNT 23

Wesberry v. Sanders, 376 U.S. 1 (1964) .......... 16, 24, 28

Williams v. Rhodes, 393 U.S. 23 (1968)...................0+- 19

CONSTITUTIONAL PROVISIONS

vi

TABLE OF AUTHORITIES — Continued

Page

Se NE, Gis OF Oi cainiviniencsnsioniccvesqusiomesscdeneciinioiis passim

Eg OE 8 a ee See ee 2, 7, 11, 32

RULES

Ss I IE I i cn sees ents aaendubebinsnadeanetia 12

OTHER AUTHORITIES

Justin Levitt, Intent is Enough: Invidious Parti-

sanship in Redistricting, 59 Wm. & Mary L.

EC 23

Michael 8S, Kang, Gerrymandering and the Con-

stitutionai Norm Against Government Parti-

sanship, 116 Mich. L. Rev. 351 (2017) .................... 23

1

INTEREST OF AMICUS CURIAE

Common Cause files this amicus curiae brief in

support of Plaintiffs-Appellants John O. Benisek et a/.'

Common Cause was founded by John Gardner in

1970 as a nonpartisan “citizens lobby” whose primary

mission is to protect and defend the democratic process

and make government accountable and responsive to

the interests of ordinary people, and not merely to

those of special interests. Common Cause is one of the

Nation’s leading democracy organizations and cur-

rently has over 1.1 million members nationwide and

local chapters in 35 states. Common Cause has been a

leading advocate of campaign finance and disclosure

laws that seek to limit the dominating and corrupting

influence of large political contributions and expendi-

tures on political campaigns and governmental poli-

cies.

Partisan gerrymanders are “incompatible with

democratic principles” (Arizona State Legislature v. Ar-

izona Indep. Redistricting Comm’n, 135 S. Ct. 2653,

2658 (2015)) and have long been an issue of particular

concern to Common Cause. Common Cause was a lead-

ing proponent of the California ballot initiatives that

' This amicus brief is filed in support of Plaintiffs-Appellants

with the consent of the parties. Plaintiffs-Appellants and

Defendants-Appellees have granted blanket consent. Pursuant to

Rule 37.6, the amicus submitting this brief and their counsel

hereby represent that neither the parties to this case nor their

counsel authored this brief in whole or in part and that no person

other than amicus paid for or made a monetary contribution to-

ward its preparation and submission.

2

led to the creation of California’s independent redis-

tricting commission that ended partisan gerrymander-

ing of that state’s legislative and congressional

districts. Common Cause also organized and led the co-

alitions that secured passage of the ballot initiatives

that resulted in the creation of the Arizona Independ-

ent Redistricting Commission and the passage of an

amendment to the Florida constitution prohibiting

partisan gerrymandering. See League of Women Voters

of Florida v. Detzner, 172 So. 3d 363 (Fla. 2015). Com-

mon Cause is also the sponsor of an annual Gerryman-

der Writing Competition and symposia aimed at

ending partisan gerrymandering.

Common Cause supported the Maryland plaintiffs

as an amicus curiae in the initial appearance of this

case before this Court (Shapiro v. McManus, 136 8. Ct.

450 (2015)) as well as on remand to the district court

(Benisek v. Lamone, 241 F. Supp. 3d 566 (D. Md. 2017)).

Common Cause also supported the Wisconsin plain-

tiffs as amicus curiae in Gill v. Whitford, No. 16-1161,

now pending before this Court.

Most importantly, Common Cause is the lead

plaintiff in Common Cause et al. v. Rucho et al., No.

1:16-CV-1026, 2018 WL 341658 (M.D.N.C. Jan. 9,

2018), in which a three-judge district court recently

held that North Carolina’s 2016 Contingent Congres-

sional Redistricting Plan (the “2016 Plan”) violates or

exceeds the authority granted States by four separate

provisions of the U.S. Constitution: the First Amend-

ment, the Equal Protection Clause of the Fourteenth

Amendment, and Article I, §§ 2 and 4. The Rucho Court

3

reached its decision with the benefit of a full four-day

trial, a largely undisputed factual record, and after de-

termining the credibility of testimony offered by mul-

tiple expert witnesses.

Common Cause v. Rucho:

The District Court’s Factual Findings

North Carolina’s 2016 Plan is an extreme and

overt partisan gerrymander of North Carolina's thir-

teen congressional districts. The 2016 Plan was based

on specific written instructions (the “Adopted Crite-

ria”) set forth by a Joint Reapportionment Committee

of the North Carolina General Assembly. The Adopted

Criteria expressly stated that only “Political Data”

would be used to construct congressional districts, and

directed that such data be used to maintain the Repub-

licans’ existing 10-3 “Partisan Advantage” in the

state’s congressional! delegation:

Political Data: The only data other than pop-

ulation data to be used to construct congres-

sional districts shall be election results in

statewide contests since January 1, 2008, not

including the last two presidential contests.

Data identifying the race of individuals or vot-

ers shall not be used in the construction or

consideration of districts in the 2016 Contin-

gent Congressional Plan.

Partisan Advantage: The partisan makeup of

the congressional delegation under the en-

acted plan is 10 Republicans and 3

4

Democrats. The Committee shall make rea-

sonable efforts to construct districts in the

2016 Contingent Congressional Plan to main-

tain the current partisan makeup of North

Carolina's congressional delegation.

Common Cause v. Rucho, 2018 WL 341658, at *6.

Representative David Lewis, the Republican co-

chair of the Joint Committee and the author of the

Adopted Criteria, told the committee that the Adopted

Criteria “contemplate|s| looking at the political data

... and as you draw the lines, if you're trying to give a

partisan advantage, you would want to draw lines so

that more of the whole VTDs voted for the Republican

on the ballot than they did [for] the Democrat.” Jd. As

the district court noted, Representative Lewis “further

explained that ‘to the extent |we] are going to use po-

litical data in drawing thle] map, it is to gain partisan

advantage’ and ‘acknowledgeld] freely that this would

be a political gerrymander. . . .’” /d.

The district court found that the “Legislative De-

fendants [{did| not dispute that the General Assembly

intended for the 2016 Plan to favor supporters of Re-

publican candidates and disfavor supporters of non-

Republican candidates. Nor could they.” Jd. at *1. “The

Republican-controlled North Carolina General Assem-

bly expressly directed the legislators and consultant

responsible for drawing the 2016 Plan to rely on ‘polit-

ical data’ — past election results specifying whether,

and to what extent, particular voting districts had fa-

vored Republican or Democratic candidates, and there-

fore were likely to do so in the future — to draw a

5

districting plan that would ensure Republican candi-

dates would prevail in the vast majority of the state’s

congressional districts.” Jd. Further, the district court

found that the “Legislative Defendants ... never ar-

gued || that the 2016 Plan’s intentional disfavoring of

supporters of non-Republican candidates advance|d|

any democratic, constitutional, or public interest.” /d.

(italics in original).

The district court then made detailed findings of

fact in support of its conclusions that the 2016 Plan

violated each of four separate provisions of the Consti-

tution.

Equal Protection: The district court found “that

Plaintiffs presented more-than-adequate evidence to

satisfy their burden to demonstrate that the General!

Assembly was motivated by invidious partisan intent

in drawing the 2016 Plan.” Jd. at *45. And the district

court, though not adopting the legal conclusion that

“the law requires a finding of predominance, || none-

theless f|ound) that Plaintiffs” evidence — particularly

and enactment of the 2016 Plan and Dr. Mattingly’s

and Dr. Chen's analyses — establish that the pursuit of

partisan advantage predominated over the General

Assembly’s non-partisan redistricting objectives” /d.

The district court then found “that Plaintiffs’ sat-

isfied their burden [to show] discriminatory effects | |

by proving the 2016 Plan dilutes the votes of non-

Republican voters and entrenches Republican control

of the state’s congressional delegation.” Jd. at *47. The

6

court itemized the categories of evidence supporting

that conclusion and did not rely on any single metric

in reaching its conclusion that the 2016 Plan violated

the Equal Protection Clause. /d. at *42-48.

First Amendment: The district court found

that “|t]he 2016 Plan discriminates against a particu-

lar viewpoint: voters who oppose the Republican plat-

form and Republican candidates. The 2016 Plan also

discriminates against a particular group of speakers:

non-Republican candidates and voters who support

non-Republican candidates.” Jd. at *63. In support of

this finding, the district court explained in detail the

mechanics of viewpoint discrimination central to the

2016 Plan: “The General Assembly's use of Political

Data — individuals’ votes in previous elections — to

draw district lines to dilute the votes of individuals

likely to support non-Republican candidates imposes

burdens on such individuals based on their past polit-

ical speech and association.” Jd. Further, the district

court analyzed the 2016 Plan under the familiar An-

derson-Burdick test for evaluating election regula-

tions, holding that “the 2016 Plan’s partisan favoritism

excludes it from the class of ‘reasonable, politically

neutral’ electoral regulations that pass First Amend-

ment muster.” /d. (citing Burdick v. Takushi, 504 U.S.

428, 438 (1992)) The district court also found both in-

jury and causation sufficient to support a First Amend-

ment claim under familiar First Amendment analysis:

“(Tihe 2016 Plan ... ‘adversely affected’ such voters

First Amendment rights by diluting the electoral

power of their votes.” /d. at *67. “Plaintiffs’ evidence

7

establishe|d] that the 2016 Plan’s pro-Republican bias

had the effect of chilling the political speech and asso-

ciations rights of individuals and entities that support

non-Republican candidates|,| ... adversely affected

such individuals’ and entities’ First Amendment rights

by diluting the electoral speech and power of voters

who support non-Republican candidates|, and] . . . bur-

dened their political speech and associational rights.”

Id. at *69.

Article I, Section 4: The district court found that

“the 2016 Plan exceeds the General Assembly's dele-

gated authority under the Elections Clause for three

reasons: (1) the Elections Clause did not empower

State legislatures to disfavor the interest of supporters

of a particular candidate or party in drawing congres-

sional districts; (2) the 2016 Plan’s pro-Republican bias

violates other constitutional provisions, including the

First Amendment, the Equal Protection Clause, and

Article I, section 2; and (3) the 2016 Plan represents an

impermissible effort to ‘dictate electoral outcomes’ and

‘favor or disfavor a class of candidates.’” Id. at *71

(quoting United States Term Limits, Inc. v. Thornton,

514 US. 779, 833-34 (1995)); see also id. at *73.

Article I, Section 2: The district court found that

“The 2016 Plan also violates Article I, section 2’s grant

of authority to ‘the People’ to elect their Representa-

tives.” Id. at *72. “[Plartisan gerrymanders render

Representatives responsive to the controlling faction of

the State legislature that drew their districts. ... By

rendering Representatives responsive to state legisla-

tures who drew the districts rather than the People,

8

the 2016 Plan also upsets the careful balance struck by

the Framers in the Great Compromise by ‘inter-

posling|’ the General assembly between North Carolin-

ians and their Representatives in Congress.” /d. at *73.

The district court in Common Cause v. Rucho

reached these factual findings regarding Plaintiffs’

claims after extensive discovery and with the benefit

of a full trial. However this Court settles the legal

questions presented by the Maryland case, it should do

so with full awareness of the facts relevant to the Leg-

islative Defendants’ now-pending appeal of the district

court decision in Rucho, Despite procedural differences

in the cases, however, Common Cause believes that the

Maryland plaintiffs — Appellants here — have demon-

strated their entitlement to relief under the First

Amendment and that the Maryland district court

erred in denying the relief sought.

The Partisan Gerrymander of

Maryland’s Sixth Congressional District

Maryland is a predominantly Democratic state.

Registered Democrats outnumber registered Republi-

cans by over a million voters statewide. Approximately

56% of registered voters in Maryland are Democrats,

while 26% of voters are registered Republicans. See

Maryland State Board of Elections, “2012 Presidential

General Voter Registration Counts as of Close of Reg-

istration — Statewide,” available at http://www.elections.

state.md.us/press_room/documents/PG 1 2/Precinct

RegisterCounts/Statewide.pdf Prior to the 2011

9

redistricting, Maryland was represented in the House

of Representatives by an eight-member congressional

delegation composed of six Democrats and two Repub-

licans that corresponded closely with the relative

share of registered voters in the state.

During the 2011 redistricting cycle, the redistrict-

ing process in Maryland was dominated by the Demo-

crats, who then occupied both the Governor’s office and

a large majority of the seats in both houses of the Mar-

yland legislature. The Democrats used their control

over the redistricting process to oust Republican in-

cumbent Roscoe Bartlett by gerrymandering the Sixth

District to convert it from a reliably Republican dis-

trict into a reliably Democratic district.

Maryland’s Sixth Congressional District was lo-

cated along Maryland’s northern border with Pennsy!-

vania and was principally composed of predominately

rural counties that had voted staunchly Republican for

more than a generation. A plurality (46.6%) of the vot-

ers in the Sixth District were registered Republicans

while 35.8% were registered Democrats. For 20 years,

the people of the Sixth District had elected Republican

Representative Roscoe Bartlett to represent them in

Congress. Bartlett was popular with the people of his

district and had easily won reelection in 2010 by a mar-

gin of over 28 points.

Although Maryland neither gained nor lost seats

in the House of Representatives as a result of the 2010

census, the lines of Maryland’s eight congressional dis-

tricts had to be redrawn to reflect population shifts

10

within the state. Prior to redistricting, the Sixth Dis-

trict was only slightly overpopulated by approximately

10,000 people, while two of its adjacent districts were

underpopulated. The Maryland legislature could easily

have brought the Sixth District into compliance with

the one-person-one-vote rule simply by shaving a few

precincts from its southern border and adding them to

either of two adjacent districts.

The Governor and the Democratic majority in the

legislature decided instead to take a meat cleaver and

chop the Sixth District almost in half. The district

court found that the Democratic legislature “trans-

ferrljed| 360,368 Marylanders out of the Sixth District

and 350,179 Marylanders into the Sixth District... .

In the process, 66,417 registered Republicans were re-

moved from the district and 24,460 registered Demo-

crats were added to the district.... After the 2011

Plan was implemented, a plurality (44.8%) of voters in

the Sixth District were registered Democrats, while

34.4% of voters were registered Republicans... .”

Benisek v. Lamone, 266 F. Supp. 3d 799, 809 (D. Md.

2017) (Findings of Fact 1] 6, 7) (emphasis in original).

The Democrats gerrymandered the lines of the Sixth

District to convert the district from a reliably Republi-

can district into a reliably Democratic district for the

entire decade. The result was exactly as the Democrats

intended. “In the 2012 congressional election . . . Dem-

ocrat John Delaney defeated incumbent Republican

congressman Roscoe Bartlett by a 20.9% margin” and

was reelected in 2014 and 2016. Jd. at 809-10 (Findings

of Fact 74 9, 10).

11

Appellants, including John Benisek and other

registered Republican residents of the former Sixth Dis-

trict, challenged the constitutionality of the Demo-

crats’ gerrymander of the Sixth District on First

Amendment grounds and also under Article I, § 2 and

Article I, § 4 of the Constitution.*? They alleged that the

purpose and effect of the 2011 Plan was to penalize

them and other registered Republican residents of the

Sixth District because of their Republican Party mem-

berships, party affiliations, and voting histories by di-

luting the effectiveness of their votes for Republican

congressional candidates, while simultaneously en-

hancing the relative effectiveness of ballots cast by

Democratic voters in congressional district elections.

They alleged that the gerrymander of the Sixth Dis-

trict burdened their representational rights by depriv-

ing them and other Republican residents of the former

Sixth District of the opportunity to elect (or re-elect) a

Republican candidate of their choice to represent them

in the House of Representatives.

In Shapiro v. McManus, 136 S. Ct. 450, 456 (2015),

this Court reversed the dismissal of the Appellants’

complaint by a single district judge and remanded the

case with instructions to convene a three-judge district

court to rule on the merits of Appellants’ claims. On

remand, the district court denied the State’s motion to

* The Article I claims of the Maryland plaintiffs are not at

issue in this appeal, but the rubric for deciding such claims pre-

sented by the North Carolina district court in Common Cause v.

Rucho presents an alternate basis on which the Maryland plain-

tiffs are now entitled to relief. See Argument, Section III, infra.

12

dismiss. Shapiro v. McManus, 203 F. Supp. 3d 579, 600

(D. Md. 2016).

After the completion of discovery, Appellants

moved for a preliminary injunction and to consolidate

the hearing with the trial on the merits — as provided

by Fed. R. Civ. P. 65(a)(2) — in the hope of obtaining in-

junctive relief in sufficient time for the legislature to

adopt a constitutional plan prior to the 2018 primary

and general elections. A divided district court, over a

strong 39-page dissent by Judge Niemeyer, refused to

consolidate the hearing with the trial on the merits,

and denied Appellants’ motion for a preliminary in-

junction. The majority also, and on its own motion,

stayed further proceedings pending a ruling by this

Court in Gill v. Whitford. Benisek v. Lamone, 266

F. Supp. 3d at 801.

The Ruling of the Lower Court

The majority assumed “that Plaintiffs have ad-

duced sufficient evidence to show that the State crafted

the 2011 redistricting plan (and the Sixth District in

particular) with the ‘specific intent to impose a burden’

on Plaintiffs and similarly situated citizens through

vote dilution.” Id. at 808 (emphasis added; citation

omitted). A divided court, however, denied the Appel-

lants’ motion for a preliminary injunction on the

ground that the Appellants had failed to show a

“strong likelihood of success” on the merits of their

First Amendment claims because “the Court is not yet

persuaded that it was the gerrymander (versus a host

13

of forces present in every election) that flipped the

Sixth District and, more importantly, that will con-

tinue to control the electoral outcomes in that district.”

Id. at 808, 836.

The majority’s central holding as to the burden a

plaintiff must satisfy under the First Amendment was

as follows: “in the redistricting context, the govern-

ment’s ‘action’ is only ‘injurious’ if it actually alters the

outcome of an election (or otherwise works some tangi-

ble, measurable harm on the electorate). In other

words the question of but-for causation is closely

linked to the very existence of an injury: 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 occurred.” Id. at 811 (Conclusions of

Law { 6) (emphasis added).

The majority also ruled that “vote dilution is a

matter of degree, and a de minimis amount of vote di-

lution, even if intentionally imposed, may not result in

a sufficiently adverse effect on the exercise of First

Amendment rights to constitute a cognizable injury.

... land that] Plaintiffs [have not] shown that they suf-

fered any tangible First Amendment burden other

than, perhaps, their inability to elect their preferred

candidate.” Id. (Conclusions of Law 4 4) (internal quo-

tations omitted).

Judge Niemeyer forcefully dissented. He wrote

that “when district mapdrawers target voters based on

their prior, constitutionally protected expression in

voting and dilute their votes, the conduct violates the

14

First Amendment, effectively punishing voters for the

content of their voting practices.” Jd. at 818 (citing

Shapiro, 203 F. Supp. 3d at 595-96). Articulating this

position, Judge Niemeyer noted that “[t]he First

Amendment test focuses on the motive for manipulat-

ing district lines, and the effect the manipulation has

on voters, not the result of the vote. It is therefore suf-

ficient in proving a violation . . . to show that a voter

was targeted because of the way he voted in the past

and that the action put the voter at a concrete disad-

vantage. The harm is not found in any particular elec-

tion statistic, nor even in the outcome of an election,

but instead on the intentional and targeted burdening

of the effective exercise of a First Amendment repre-

sentational right.” Jd. at 818-19 (emphasis in original);

and see also id. at 833 (“[A] plaintiff who has shown

that the State acted with impermissible retaliatory in-

tent need not show that the linedrawing altered the

outcome of an election — though such a showing would

certainly be relevant evidence of the extent of the in-

jury.”); Id. at 834 (“[Wjhile the State’s linedrawing

need not change the outcome of an election to be cul-

pable, the fact that a Democratic candidate was elected

... Supports the fact that the Republican voters have

suffered constitutional injury.”); Jd. (“Republicans in

the Sixth District faced a severe political disadvantage

after the 2011 redistricting. This itself is a constitu-

tional injury.”).

Further, Judge Niemeyer took issue with the ma-

jority’s ruling that — to prove causation — the Plaintiffs

were required to negate the possibility that the defeat

15

of twenty-year Republican incumbent Roscoe Bartlett

was not the result of his age, voter dissatisfaction with

his performance, or a myriad of other neutral factors,

but was caused by the partisan gerrymander of the

Sixth District. He wrote that, “as to causation, the

plaintiffs have established that, absent the State’s re-

taliatory intent, the Sixth District lines would not have

been drawn to dilute the electoral power of Republican

voters to the same extent. The framework governing

our inquiry into causation is set forth in Mt. Healthy

lv. Doyle], 429 U.S. 274 .. . “[O|nce the plaintiffs have

established that the government’s constitutionally im-

permissible intent was a motivating factor in [its] de-

cision, the burden shifts to the State to show that, even

absent the forbidden intent, it would have reached the

same decision.” Jd. at 835 (internal quotations omitted;

citations omitted).

&

¥

SUMMARY OF THE ARGUMENT

The Democratic majority's intentional conversion

of Maryland’s Sixth Congressional District from a pre-

dominately Republican district to a predominantly

Democratic district is a textbook example of a partisan

gerrymander. Arizona State Legislature v. Arizona In-

dependent Redistricting Comm’n, 135 S. Ct. 2653, 2658

(2015) (defining partisan gerrymandering as the inten-

tional “drawing of. . . legislative [or congressional] dis-

trict lines to subordinate adherents of one political

party and entrench a rival party in power.”).

16

“Partisan gerrymanders .. . are inconsistent with

democratic principles.” Arizona State Legislature, 135

S. Ct. at 2658. The Democratic gerrymander of Mary-

land’s Sixth District violates Article 1, § 2 and Article

1, $4 of the Constitution. U.S. Term Limits Inc. v.

Thornton, 514 U.S. 779, 833-34 (1995); Cook v. Gralike,

531 U.S. 510, 523 (2001); Wesberry v. Sanders, 374 U.S.

1 (1964). It is plainly inconsistent with the objective of

all redistricting which is to “establish fair and effective

representation for all citizens” (Vieth v. Jubelirer, 541

U.S. 267, 307 (2004)) (quoting Reynolds v. Sims, 377

U.S. 533, 565-66 (1964)), and not merely for the sup-

porters of the party in power.

The majority “assumed” that the Appellants had

produced sufficient evidence to prove that the Demo-

crats used political data reflecting the political party

affiliations and voting histories of voters in the Sixth

District to “craft| | the 2011 redistricting plan (and the

Sixth District in particular) with the specific intent to

impose a burden on Plaintiffs and similarly situated

citizens through vote dilution.” 266 F. Supp. 3d at 808

(emphasis added).

The majority erred by refusing to subject the

2011 Plan to strict scrutiny as required by this Court's

core First Amendment jurisprudence that “content-

based laws,” and especially those that discriminate

based on political viewpoint — “are presumptively un-

constitutional and may be justified only if the govern-

ment proves that they are narrowly tailored to serve

compelling state interests.” Reed v. Town of Gilbert,

135 S. Ct. 2218, 2226 (2015); Vieth v. Jubelirer, 541 U.S.

17

at 314-15 (2004) (Kennedy, J., concurring); Rosenberger

v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829

(1995); Bd. of Educ., Island Trees Union Free Sch. Dist.

v. Pico, 457 U.S. 853, 870-71 (1982) (“if a Democratic

school board, motivated by party affiliation, ordered

the removal of all books written by or in favor of Re-

publicans, few would doubt that the order violated the

constitutional rights of students .. . ”).

The majority also erred in holding that the inten-

tional dilution of the Appellants’ votes is not an injury

to Appellants’ First Amendment rights unless it alters

the outcome of the general election. The enactment of

the 2011 Plan diluted the Appellants’ votes, and

erected a barrier that deprived Appellants and other

Republican voters in the Sixth District of the oppor-

tunity to elect a Republican candidate to Congress. See

N.E. Fla. Chapter of A.G.C. of Am. v. City of Jackson-

ville, 508 U.S. 565 (1993).

There is not, as the majority held, a de minimis

exception to the First Amendment prohibition against

viewpoint discrimination. See Elrod v. Burns, 427 U.S.

347, 358 n.11 (1976) (“This Court’s decisions have pro-

hibited [State action] .. . which dampen|s] the exercise

... of First Amendment rights, slight/ly].”).

The ruling of the majority is also inconsistent with

the decisions of this Court that have held repeatedly

that minor deviations from the one-person one-vote

rule in the apportionment of congressional districts

are prohibited by Article I, § 2 of the Constitution.

18

Kirkpatrick v. Priesler, 394 U.S. 526 (1969); Karcher v.

Daggett, 462 U.S. 725 (1983).

Finally, the district court also erred not only in re-

quiring the Appellants to prove that Representative

Bartlett's defeat in the 2012 general election was

caused by the gerrymander of the Sixth District, but

by placing the burden of proof on Appellants to dis-

prove the possibility that Representative Bartlett's de-

feat was the result of other factors that are present in

every election. Mt. Healthy City Bd. of Educ. v. Doyle,

429 U.S. 275, 287 (1977).

7 —_—

ARGUMENT

The denial of the Appellants’ motion for a pre-

liminary injunction was predicated on a series of clear

legal errors as to fundamental principles of constitu-

tional law and should therefore be reversed as an

abuse of discretion. Highmark Inc. v. Allcare Health

Mamt. Sys. Inc., 134 8. Ct. 1744, 1748 n.2 (2014).

The dismemberment of Marylend’s Sixth Congres-

sional! District is a textbook partisan gerrymander by

this Court’s own definition. See Arizona State Legisla-

ture v. Arizona Indep. Redistricting Comm'n, 135 8. Ct.

2653, 2658 (2015) (defining partisan gerrymandering

as the intentional “drawing of . . . legislative lor con-

gressional] district lines to subordinate adherents of

one political party and entrench a rival party in

power”).

19

Partisan gerrymanders are inconsistent with

the fundamental objective of all redistricting, which is

to “establish fair and effective representation for all

citizens.” Vieth v. Jubelirer, 541 U.S. 267, 307 (2004)

(quoting Reynolds v. Sims, 377 U.S. 533, 565-66 (1964)

(internal punctuation omitted). For this reason, the

Court has recognized that “|pjartisan gerrymanders

... are [also] incompatible with democratic principles.”

Arizona State Legislature, 135 8S. Ct. at 2658.

I. The Democratic Gerrymander of the Sixth

District Violated the First Amendment

The right to join a political party “for the advance-

ment of political beliefs, and the right of qualified vot-

ers, regardless of their political persuasion, to cast

their votes effectively .. . rank among our most precious

freedoms . . . protected by the First Amendment.” Wil-

liams v. Rhodes, 393 U.S. 23, 30 (1968) (emphasis

added). Freedom of political belief and expression are

“central” to the First Amendment which “was intended

to protect a democratic system whose proper function-

ing is indispensably dependent on the unfettered judg-

ment of each citizen. . . .” Elrod v. Burns, 427 U.S. 347,

357, 372 (1976).

The legal standards for evaluating claims under

the First Amendment are clearly established. The First

Amendment prohibits government from “prescribling]|

what shall be orthodox in politics.” (W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 642 (1943)) and, for this

reason, from enacting “a regulation providing that no

20

Republican ... shall be appointed to federal office.”

United Public Workers v. Mitchell, 330 U.S. 75, 100

(1947); see also Vieth v. Jubelirer, 541 U.S. 267, 312

(2004) (Kennedy, J., concurring in the judgment) (“If a

State passed an enactment that declared ‘All future

apportionment shall be drawn so as most to burden

Party X's rights to fair and effective representation,

though still in accord with one-person-one-vote princi-

ples, we would surely conclude the Constitution had

been violated.”).

These specific applications of the First Amend-

ment to political expression reflect a broader re-

striction on the power of government to direct the

content of its citizens’ expression. The First Amend-

ment prohibits government from regulating speech or

other First Amendment-protected conduct “based on

its substantive content or the message it conveys.” Po-

lice Dep't of Chicago v. Mosley, 408 U.S. 92, 96 (1972).

“Content-based laws ... are presumptively unconsti-

tutional and may be justified only if the government

proves that they are narrowly tailored to serve compel-

ling state interests.” Reed v. Town of Gilbert, 135 8. Ct.

2218, 2226 (2015).

“When the government targets not subject

matter, but particular views ... the violation of the

First Amendment is all the more blatant. Viewpoint

discrimination is thus an egregious form of content dis-

crimination” and therefore presumptively unconstitu-

tional. Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819, 829 (1995) (citation omitted); Bd. of

Educ., Island Trees Union Free Sch. Dist. v. Pico, 457

21

U.S. 853, 870-71 (1982) (“If a Democratic school board,

motivated by party affiliation, ordered the removal of

all books written by or in favor of Republicans, few

would doubt that the order violated the constitutional

rights of the students. . . .”).”

A. The gerrymander was content-based

and viewpoint-discriminatory.

The manipulation of district lines to target voters

based on their unquestionably protected First Amend-

ment expression is, by definition, a content-based reg-

ulation covered by the First Amendment. The purpose

of this specific partisan gerrymander was to discrimi-

nate intentionally between political parties and voters

based on their political beliefs. The party in power en-

trenched its hold on political power by intentionally

* The First Amendment principles that prohibit viewpoint

discrimination are well-established and have been applied in a

wide variety of cases to prohibit: political patronage and employ.

ment preferences (Elrod, 427 U.S. 347 (1976); Rutan v. Republi-

can Party of Ill., 497 U.S. 62 (1990)); patronage dismissals of

public employees (Keyishian v. Bd. of Regents, 386 U.S. 589

(1967)); retaliatory firing of public school teachers (Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)); firing of

public defenders (Branti v. Finkel, 445 U.S. 507 (1980)); the award

or termination of public contracts (O'Hare Truck Serv. v. City of

Northlake, 518 U.S. 712 (1996)), Bd. of County Comm'rs v. Um-

behr, 518 U.S. 668 (1996)); access to campus facilities (Rosen-

berger, 515 U.S. 819); denial of a trademark registration (Mata v.

Tam, 137 8. Ct. 1744 (2017)); the award or terminatior. of public

benefits (Perry v. Sindermann, 408 U.S. 593 (1972)); access to

books in school libraries (/sland Trees, 445 U.S. 507); and ballot

access cases (Anderson v. Celebrezze, 460 U.S. 780 (1983)), among

others.

22

drawing district lines in favor of its own candidates

and voters and to dilute the voting strength of the op-

position party (or parties). See Arizona State Legisla-

ture, 135 S. Ct. at 2658. This Court’s First Amendment

jurisprudence requires that such partisan gerryman-

ders be subjected to strict scrutiny under the First

Amendment.

Here, the facts supporting the application of that

rule are beyond question. The Democratic majority

used political data (the Democratic Performance In-

dex) that reflected voters’ political beliefs, party affili-

ations, and voting histories to dilute the effectiveness

of votes of likely Republican voters by “cracking” the

Sixth District and distributing Republican voters

among districts with safe Democratic pluralities.

That government action is presumptively uncon-

stitutional under the First Amendment. As Justice

Kennedy noted in Vieth, partisan gerrymanders may —

by their very design — “burden|| or penalizie| citizens

because of their participation in the electoral process,

their voting history, their association with a political

party, or their expression of political views. ... Under

general First Amendment principles those burdens. . .

are unconstitutional absent a compelling government

interest.” Vieth, 541 U.S. at 314 (Kennedy, J. concurring

in the judgment).

Partisan gerrymanders are doubly offensive to the

First Amendment. They not only dilute the effective-

ness of the votes of the opposition, they also enhance

the relative effectiveness of the votes of supporters of

23

the party in power. See Buckley v. Valeo, 424 U.S. 1, 48-

49 (1976); Common Cause v. Rucho, 2018 WL 341658

at *68.

“The principal inquiry in determining content

neutrality [under the First Amendment] . . . is whether

the government has adopted a regulation . . . because

of disagreement with the message” or the messenger.

(citation omitted) The government’s purpose is the con-

trolling consideration.” Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989) (Kennedy, J.) (emphasis

added); see also Michael S. Kang, Gerrymandering and

the Constitutional Norm Against Government Parti-

sanship, 116 Mich. L. Rev. 351 (2017); Justin Levitt,

Intent is Enough: Invidious Partisanship in Redistrict-

ing, 59 Wm. & Mary L. Rev. __ (forthcoming 2018).

In Vieth, Justice Kennedy emphasized that “the

inquiry” in a partisan gerrymander case, “is not

whether political classifications were used,” but how

they were used. He said that “the inquiry ... is

whether political classifications were used to burden a

group’s representational rights. If a court ... find|[s]

that a State did impose burdens and restrictions on

groups or persons by reason of their views, there would

likely be a First Amendment violation, unless the State

shows some compelling interest.” Vieth, 541 U.S. at 315

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

added).

“[A] successful claim . . . of partisan gerrymander-

ing” under the First Amendment requires proof of both

a partisan purpose (Mt. Healthy City Bd. of Educ. v.

24

Doyle, 429 U.S. 275, 287 (1977)) and a partisan effect —

that the gerrymander imposed a “burden, as measured

by a reliable standard, on the complainants’ represen-

tational rights.” LULAC uv. Perry, 548 U.S. 399, 418

(2006) (Kennedy, J.). The purpose of the manageable

standard is, as Justice Kennedy explained in Vieth, to

enable a court “to conclude that the State did impose a

burden or restriction on the rights of a party’s voters.”

541 US. at 315 (Kennedy, J., concurring in the judg-

ment).

B. Intentional vote dilution is a “managea-

ble standard” for identifying the burden

on Appellants’ First Amendment rights.

Vote dilution has long been recognized to be a

“manageable standard” by which to measure the effect

of an apportionment on the representational rights of

voters. See, e.g., Wesberry v. Sanders, 376 U.S. 1 (1964);

Reynolds v. Sims, 377 U.S. 533 (1964); Kirkpatrick v.

Priesler, 394 U.S. 526 (1969); Karcher v. Daggett, 462

U.S. 725 (1983); cf United States v. Classic, 313 U.S.

299 (1941).

The enactment of the 2011 Plan diluted the votes

of Appellants and other Republican voters in the Sixth

District on the effective date of the plan and was an ac-

tual, concrete and particularized burden on or injury

to their First Amendment rights. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992).

The majority “assumed” that the Appellants had

proved that the gerrymander of the Sixth District had

25

a partisan purpose — that Appellants had “adduced suf-

ficient evidence to show that the State crafted the 2011

redistricting plan (and the Sixth District in particular)

with the ‘specific intent to impose a burden’ on Plain-

tiffs and similarly situated citizens through voter dilu-

tion.” 266 F. Supp. 3d at 808 (emphasis added; citation

omitted). This “assumption” was fully supported by the

evidence and sufficient to establish a presumptive vio-

lation of both the First Amendment and the Elections

Clause.

The enactment of a congressional redistricting

plan that intentionally — and by its very mechanics —

diluted the effectiveness of Appellants’ votes was both

an actual injury and a threatened injury to Appellants’

First Amendment rights. The evidence cited by the ma-

jority (and on which Judge Niemeyer relied for his

powerful dissent) was all the proof of injury that is re-

quired to enable a court “to conclude that the State did

impose a burden or restriction on the rights of a party’s

voters.” Vieth, 541 U.S. at 315 (Kennedy, J., concurring

in the judgment).

As in Elrod v. Burns, “\i)t is clear . . . that the First

Amendment interests were either threatened or in fact

being impaired at the time” Appellants sought prelim-

inary injunctive relief from the District Court, and

therefore “the District Court abused its discretion in

denying preliminary injunctive relief.” 427 U.S. at 373-

74.

26

C. The State failed to prove that the burden

on Appellants’ First Amendment rights

was justified by a compelling state inter-

est.

The burden imposed by the partisan gerrymander

of the Sixth District on Appellants’ First Amendment

rights, and those of other Republican residents of the

former Sixth District, cannot be justified by a legiti-

mate state interest, much less by one of paramount and

compelling importance.

Partisan gerrymanders violate the duty of govern-

ment to govern impartially. See Romer v. Evans, 517

U.S. 620, 633 (1996). “In the context of redistricting,

thle] [duty to govern] impartially ‘is of critical im-

portance because the franchise provides most citizens

their only voice in the legislative process.’” Davis v.

Bandemer, 478 U.S. 109, 166 (1986) (Powell, J., concur-

ring in part and dissenting in part, quoting Reynolds v.

Sims); see also Karcher, 462 U.S. at 748 (Stevens, J.,

concurring). And naked [pjartisan advantage is not a

legitimate state interest. Harris v. Arizona Indep. Re-

districting Comm’n, 578 U.S. __, 136 S. Ct. 1301, 1307

(2016) (dicta); Cox v. Larios, 542 U.S. 947, 947-49

(2004); Raleigh Wake Citizens’ Ass’n v. Wake Cty. Bd. of

Elections, 827 F.3d 333, 345 (4th Cir. 2016).

27

Il. The District Court Erred in Holding That

Appellants Had Failed to Prove That the

Gerrymander Burdened Their First Amend-

ment Rights

A. The district court erred in holding that

the First Amendment permits a “de min-

imis” amount of intentional vote dilu-

tion.

The district court erred in holding that “vote dilu-

tion is a matter of degree” and that “a de minimis

amount of vote dilution . . . intentionally imposed” on

a group of voters because of their political views “may

not result in a sufficiently adverse effect on the exer-

cise of First Amendment rights to constitute a cogniza-

ble injury.” Benisek v. Lamone, 266 F. Supp. 3d at 811

(Conclusions of Law { 4).

There is no de minimis exception to the First

Amendment prohibition of viewpoint discrimination.

See Elrod v. Burns, 427 U.S. at 358 n.11 (“This Court’s

decisions have prohibited [State action] ... which

dampen|s] the exercise . . . of First Amendment rights,

however slight(ly]....”) (emphasis added); Rutan v.

Republican Party of Illinois, 497 U.S. 62, 75 n.8 (1990)

(“[T)he First Amendment... protects. . . from ‘even an

act of retaliation as trivial as failing to hold a birthday

party.’”); see also Matal v. Tam, 137 S. Ct. 1744, 1765

(2017) (Kennedy, J., concurring) (“the viewpoint dis-

crimination rationale renders unnecessary any ex-

tended treatment of other questions raised by the

parties”). Moreover, this Court has applied that same

principle in the vote dilution context, holding

28

repeatedly that Article I, § 2 of the Constitution pro-

hibits de minimis amounts of vote dilution in the ap-

portionment of congressional districts. Kirkpatrick,

394 U.S. 526; Karcher, 462 U.S. 725.

B. The district court erred in holding that

intentional dilution of Appellants’ votes

is not an injury unless it altered the out-

come of an election.

The district court majority erred as a matter of law

both in: (1) focusing exclusively on the effect of the ger-

rymander on the outcome of the election in the Sixth

District; and (2) in placing the burden of proof on the

Appellants to prove that the Democratic gerrymander

of the Sixth District, “versus a host of forces present in

every election|,| ... flipped the Sixth District and,

more importantly, that will continue to control the elec-

toral outcomes in that district” not in subsequent elec-

tions. Benisek v. Lamone, 266 F. Supp. 3d at 808.

If the majority were correct, a voter whose

vote has been diluted by the enactment of a malappor-

tioned congressional redistricting plan would never (as

the majority concedes) have standing to bring a pre-

election challenge to the statute and would have to

wait until after at least one, and perhaps several, elec-

tions had been held under the unconstitutional plan in

order to prove that outcomes of those elections were

altered and would have been different, but for the di-

lution of his or her vote. Under that logic, Wesberry v.

29

Sanders, 376 U.S. 1; Kirkpatrick, 394 U.S. 526; and

Karcher, 462 U.S. 725, would all have to be overruled.

The Appellants’ representational rights were in-

jured-in-fact (see Lujan, 504 U.S. 555) by the enactment

of a congressional redistricting plan that was “crafted

... With the ‘specific intent to impose a burden’ on

Plaintiffs and similarly situated citizens through vote

dilution.” 266 F. Supp. 3d at 808. Their votes were ac-

tually diluted on the effective date of the 2011 Plan

when the Sixth District was “cracked.” Some Republi-

can residents of the former Sixth District were left

stranded in the new Sixth District with a newly-

creeted Democratic plurality, while other Republican

residents were deported to surrounding districts with

safe pluralities of Democratic voters.

The adoption of the 2011 Plan was both an actual

and a threatened future injury to Appellants’ First

Amendment rights, was sufficient to entitle them to

preliminary injunctive relief, and did not depend on

the outcome of the 2012 election. See Elrod, 427 U.S. at

373-74.

The enactment of 2011 Plan also created a legal

barrier whose purpose and effect is to make it more

difficult for Appellants to elect Republican candidates

to Congress. This Court has repeatedly held that,

When the government erects a barrier that

makes it more difficult for members of one

group to obtain a benefit than it is for mem-

bers of another group, a member of the [disad-

vantaged] group ... need not allege that he

30

would have obtained the benefit but for the

barrier in order to establish standing. The “in-

jury in fact”... is the denial of equal treat-

ment resulting from the imposition of the

barrier, not the ultimate inability to obtain

the benefit.

N.E. Fla. Chapter of A.G.C. of Am. v. City of Jackson-

ville, 508 U.S. 656, 666 (1993); see also Clinton v. City

of New York, 524 U.S. 417, 433 n.2 (1998); see also

Quinn v. Millsap, 491 U.S. 95, 103 (1989); Clements v.

Fashing, 457 U.S. 957 (1982); Turner v. Foche, 396 U.S.

346 (1970) (all holding that individuals have standing

to challenge statutes or regulations that deprived

them of the opportunity to run for or to be appointed

to a public office, without having to prove that they

would have been successful).

This Court has never held that a presidential can-

didate — or that candidate’s supporters — are not in-

jured by and cannot challenge the constitutionality of

a state ballot-access statute or regulation unless they

can prove that — but for having been denied access to

the ballot — their preferred candidate would have won

the primary, much less the general election. See Ander-

son v. Celebrezze, 460 U.S. 780 (1983). The district court

erred in imposing an artificially high burden for proof

of injury here.

31

C. The district court erred in placing the

burden of proof on Appellants to prove

the outcome of the election was not the

result of other factors.

The district court further erred by placing the bur-

den on Appellants to refute any possible alternative ex-

planation for the electoral outcomes under the 2011

Plan. Once Appellants proved that partisanship was “a

substantial factor or . . .a motivating factor” in the de-

cision of the Maryland legislature to gerrymander the

Sixth District, the burden of proof shifted to the State

to disprove causation — to prove that the lines of the

Sixth District would have been drawn in the same way

for reasons having nothing to do with Appellants’ party

affiliations and voting histories. Mt. Healthy, 429 U.S.

at 287 (emphasis added).

The majority erred by placing the burden on the

Appellants to prove that Representative Bartlett's de-

feat by a 20 point margin in 2012 was “engineered

through a gerrymander” and was not “the result of

neutral forces and voter choice.” 266 F. Supp. 3d at 811

(Conclusions of Law 4 6).

The majority compounded this error by ruling that

the Plaintiffs were required to establish that partisan

gerrymander of the Sixth District not only “flipped the

Sixth District [but] more importantly, . . . will continue

to control the [future] outcomes in that district.” 266

F. Supp. 3d at 808. This Court has held that “/t/he loss

of First Amendment freedoms, for even minimal periods

32

of time, unquestionably constitutes irreparable injury.”

Elrod, 427 U.S. at 373 (emphasis added).

Ill. The Democratic Gerrymander of the Sixth

District was also Prohibited by Article I, § 2

and by Article I, § 4 of the Constitution

In addition to establishing a clear violation of the

First Amendment, the record also established that the

partisan gerrymander of the Sixth District also vio-

lated both Article I, § 2 and the Elections Clause in Ar-

ticle I, § 4 of the Constitution. Common Cause v. Rucho,

2018 WL 341658, at *70.

States have no inherent, sovereign, or reserved

powers over congressional redistricting. Thornton, 514

U.S. at 833-34; Cook, 531 U.S. at 523. States’ only pow-

ers over the drawing of congressional district lines are

those that have been delegated to state legislatures by

the Elections Clause in Article I, § 4. Jd.

This Court has held that the Elections Clause is a

limited delegation “of authority to issue procedural

regulations” for the conduct of congressional elections

and is not “a source of power to dictate electoral out-

comes, to favor or disfavor a class of candidates, or to

evade [other] important constitutional restraints.”

Cook, 531 U.S. at 523 (emphasis added); Thornton, 514

US. at 833-34.

33

The partisan gerrymander of Maryland's Sixth

tations. Common Cause v. Rucho, 2018 WL 341658, at

*70.

°

CONCLUSION

For the foregoing reasons, the judgment of the dis-

trict court should be reversed.

Respectfully submitted,

Greoory L. DISKANT EMMET J. BONDURANT

JONAH M. KNOBLER Counsel of Record

PETER A. NELSON BENJAMIN W. THORPE

ELENA STEIGER REICH BONDURANT, MIXSON

PATTERSON BELKNAP & E_more, LLP

Wess & TYLer LLP 3900 One Atlantic Center

1133 Avenue of the Americas 1201 W. Peachtree Street

New York, New York 10036 Atlanta, Georgia 30309

i bondurant@bmelaw.com

gidiskant@pbwt.com

(212) 336-2000 (404) 881-4100

Counsel for Amicus Curiae Common Cause