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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

No. 17-333

In The
Supreme Court of the Anited States

O. JOHN BENISEK, et al.,
Appellants,
Vv

LINDA H. LAMONE, et al.,
Appellees.

On Appeal From The United States
District Court For The District Of Maryland

BRIEF OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, INC., THE

SMITH,
CURIAE IN SUPPORT OF NEITHER PARTY

KRISTEN CLARKE BRADFORD M. BERRY
JON GREENBAUM JANETTE M. LOUARD
EzRA D. ROSENBERG KHYLA D. CRAINE
Counsel of Record THE NATIONAL
JULIE HouK ASSOCIATION FOR THE
JOHN POWERS ADVANCEMENT OF
LAWYERS’ COMMITTEE FOR COLORED PEOPLE, INC.
CIVIL RIGHTS UNDER LAW OFFICE OF
1401 New York Ave., NW, Suite 400 GENERAL COUNSEL
Washington, DC 20005 4805 Mount Hope Drive
(202) 662-8600 Baltimore, MD 21215
erosenberg@lawyerscommittee.org (410) 580-5777
WILLIAM V. CUSTER bberry@naacpnet.org
JENNIFER B. DEMPSEY Counsel for Amici Curiae
BRYAN CAVE LLP the National Association
1201 W. Peachtree St. for the Advancement of
Atlanta, GA 30312 Colored People, Inc.
(404) 572-6600
bill.custer@bryancave.com
Counsel for Amici Curiae the
Georgia State Conference of the
NAACP. Lavelle Lemon, Marlon

Reid, Celeste Sims, Patricia
Smith, and Coley Tyson

— -——

COCKLE LEGAL BRIEFS (800) 225-6964
WWW COCKLELEGALBRIEFS COM

Page
INTEREST OF THE AMICI CURIAE................. 1
INTRODUCTION AND SUMMARY OF ARGU-
EE SANS 1 Saas SOT ee 2
ARR ETE SENN. <CRaeLe W OD 8
I. Partisan Gerrymandering Claims Are
ETE ASINE Keene rane ete area 8
Il. Invidious Intent to Minimize the Voting
Power of a Political Element Is a Judicially-
Manageable Standard ...........0.....ccccccceeeceees 14
A. Invidiousness Is an Accepted, Judicially-
Manageable Standard........................... 15
B. The Court Should Adopt Such Subsidi-
ary Legal Standards As Are Relevant to
the Particular Type of Gerrymander..... 18
1. The Definition of the Type of Intent
Applicable to Pinpoint Gerryman-
der Claims May Be Different from
That Applicable to Statewide Ger-
rymander Claim,......................0..... 18
2. There Are Accepted and Judicially
Manageable Standards as to the
Level of Intent Applicable to Pin-
point Gerrymandering Cases ......... 23
C. The Georgia Case Demonstrates the
Sort of Evidence Relevant to Pinpoint
Gerrymander Claims................000..c00.0. 25
1. Statements by Officials Involved in
the Line-Drawing Decision............. 26

i

TABLE OF CONTENTS

ii

TABLE OF CONTENTS — Continued

Page
2. The Use of Race to Achieve a Parti-
san End in Line-Drawing............... 28
3. Modifying a Plan Mid-Decade ........ 32
4. Deviation from Traditional Dis-
tricting Principles........................... 33
ee 34

D. The Court Should Allow the Contours of
Subsidiary Legal Standards and Evi-
dence Relevant to Gerrymander Cases
Sa EES Sa Ble Slt oli Siena 36

TER ee ect AO ST, OR a ae eae 38

ili

TABLE OF AUTHORITIES
Page
CASES
Ala. Legislative Black Caucus v. Alabama, 135

i SR Br I cercvtnenctiicscemhininnsnericileniaitlanciatinntanis 20
Ariz. State Legislature v. Ariz. Indep. Redistrict-

ing Comm’n, 135 S. Ct. 2652 (2015) ................... 9,19
Baker v. Carr, 369 U.S. 186 (1962)............. 8, 14, 15, 37
Bethune-Hill v. Va. State Bd. of Elections, 137

8, RR a ey ee: 19, 33
Bray v. Alexandria Women’s Health Clinic, 506

SAEs SE ITED coccncscnsdiniicisveteenounieaipneniniiimnentannniden 17
Burns v. Richardson, 384 U.S. 73 (1966).............. 20, 21
Cano v. Davis, 211 F. Supp. 2d 1208 (C.D. Cal.

DIED ctcctnadsmnainsssnessetinatienaiiaaaaimninaieel, 31
Common Cause, et al. v. Rucho, United States

District Court for the Middle District of North

Carolina, No. 1:16-CV-01164-WO-JEP........... passim
Cooper v. Harris, 137 S. Ct. 1455 (2017)................. 19, 28
Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

Fe Ge rcccnistcnvivciasiitinnennnnianinanidiaataabdimiaiiiiamdndaial 38
Davis v. Bandemer, 478 U.S. 109 (1986) ............ passim
Fortson v. Dorsey, 379 U.S. 433 (1965) ................c0000e- 21
Gaffney v. Cummings, 412 U.S. 735 (1973).......... 16, 21

Georgia State Conference of the NAACP, et al. v.
State of Georgia, et al., __ F. Supp. 3d ___,
2017 WL 3698494 (Aug. 25, 2017).................. passim

iv

TABLE OF AUTHORITIES — Continued

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

SI eettidelitndindinnsgdnntdniataidaveniccemmennanssenesencqsoeters passim
Griffin v. Breckenridge, 403 U.S. 88 (1971).......... 16, 17
League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .............2ccccceeceeeeeeeee 26, 28, 30, 33
Luther v. Borden, 48 U.S. 1 (1849) ...........0ccccccccceeeeeeee 14
Marbury v. Madison, 5 U.S. 137 (1803)...................... 13
Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla.

SEES RIS TREE REED ES ae 31
Meyer v. Nebraska, 262 U.S. 390 (1923) ..................... 32
Miller v. Johnson, 515 U.S. 900 (1995)................. 25, 30
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

EE 24
N.C. State Conf. of NAACP v. McCrory, 831 F.3d

TE 30
Packingham v. North Carolina, 137 8. Ct. 1730

ESE EEE SS SO 31
Patino v. City of Pasadena, 230 F. Supp. 3d 667

I. ssesunanisennevsonanes 31
Perez v. Abbott, 2017 WL 962947 (W.D. Tex. Mar.

AA 29, 31
Perez v. Abbott, 2017 WL 1450121 (W.D. Tex. Apr.

EERE ER Bree ee 28
Perez v. Abbott, No. 5:11-cv-00360-OLG-JES-XR,

2017 WL 3495922 (W.D. Tex. Aug. 15, 2017).......... 28

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...... 31

Vv

TABLE OF AUTHORITIES — Continued

Page
Reynolds v. Sims, 377 U.S. 533 (1964)............ 15, 16, 37
Rodriguez v. Harris Cty., Tex., 964 F. Supp. 2d
Ny Ss EE ircirrtnnecsesnnntianansicemesinndintniaiioinse 31
Rogers v. Lodge, 458 U.S. 613 (1982).................2.00000 16
Shapiro v. McManus, 203 F. Supp. 3d 579 (D.
le ee etiacliniiasshinlatinesitesiitandaitihtsinatipeansdineeisbintariemeneninnssieh 22
Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016)............ 30
Vieth v. Jubelirer, 541 U.S. 267 (2004)............... passim
Village of Arlington Heights v. Metropolitan
Housing Development Corporation, 429 U.S.
I a ccchiictininsestitinhieennetenitdeitiinianiemapmensenias passim
Williams v. Rhodes, 393 U.S. 23 (1968) ..................00. 15
CONSTITUTIONAL PROVISIONS
cf eee 10, 21, 22, 24, 31
ee NI TIIIU tcsincessstincncisanctniensinnecniinninanceoen passim
Elections Clause, U.S. Const. art. I, § 2................ 10, 22
Guaranty Clause, U.S. Const. art. IV, § 4................... 14

OTHER AUTHORITIES

Daniel D. Polsby & Robert D. Popper, The Third
Criterion: Compactness as a Procedural Safe-
guard Against Partisan Gerrymandering, 9
Yale L. & Pol’y Rev. 301 (1991) .................s:sseeeeeeeeeees )

vi

TABLE OF AUTHORITIES — Continued
Page

Levitt, Justin, Intent is Enough: Invidious Par-
tisanship in Redistricting (July 14, 2017),
William & Mary Law Review, Vol. 59 (Forth-
Ge ceteisncctcbenincesccccirasiiniindaiauineintinntnintinnendboeninenicanse

Loyola Law School, Los Angeles Legal Studies
Research Paper No. 2017-24 ...0...........cccceeeceeeeeeeeeees 10

McDonald, Laughlin, The Looming 2010 Census:
A Proposed Judicially-Manageable Standard
and Other Reform Options for Partisan Gerry-
mandering, 46 Harv. J. on Legis. 243 (2009).......... 10

1

INTEREST OF THE AMICI CURIAE'

The National Association for the Advancement
of Colored People (NAACP), founded in 1909, is the
nation’s oldest and largest grassroots civil rights or-
ganization. Its principal objectives are to ensure the
political, educational, social and economic equality and
eliminate race prejudice and discrimination among the
citizens of the United States; to remove all barriers of
racial discrimination through democratic processes; to
seek enactment and enforcement of laws securing civil
rights; and to educate the public as to their constitu-
tional rights and the effects of racial discrimination.
The NAACP and its chartered units have a long his-
tory of advocating to protect minority voting rights
and to ensure effective legislative representation for
African-Americans and other racial minorities, work-
ing in state and federal courts; state legislatures and
Congress; municipal, county and state election author-
ities, as well as state and federal agencies.

The Georgia State Conference of the National As-
sociation for the Advancement of Colored People (GA
NAACP), a chartered unit of the NAACP, was formed
in 1941 to eliminate racial discrimination through
democratic processes and ensure the equal political,
educational, social, and economic rights of all persons,

* No counsel for a party has authored this brief in whole or
in part, and no counsel or any party made a monetary contribu-
tion intended to fund the preparation or submission of this brief.
No person other than amici or their counsel made a monetary con-
tribution to its preparation or submission. The parties have con-
sented to the filing of amicus briefs.

2

in particular African-Americans. GA NAACP, Lavelle
Lemon, Marlon Reid, Celeste Sims, Patricia Smith, and
Coley Tyson (Georgia redistricting plaintiffs) have
brought a lawsuit in the United States District Court
for the Northern District of Georgia, see generally Geor-
gia State Conference of the NAACP. et al. v. State of
Georgia, et al., F. Supp. 3d __, 2017 WL 3698494
(Aug. 25, 2017), alleging that the 2015 mid-census cy-
cle redrawing of Georgia State House Districts 105 and
111 is an unconstitutional partisan gerrymander. On
August 25, 2017, a three-judge panel dismissed that
count for failure to provide a judicially-manageable
standard with respect to the alleged discriminatory ef-
fect. Id. at *12-13. The Georgia redistricting plaintiffs
have an interest in the instant appeal because it raises
foundational issues related to the justiciability and
standard of review for partisan gerrymandering cases,
directly impacting the adjudication of their constitu-
tional rights.

&
—

INTRODUCTION AND
SUMMARY OF ARGUMENT

This appeal presents a helpful counterpart to the
appeal in Gill v. Whitford, 218 F. Supp. 3d 837 (W.D.
Wis. 2016), argued earlier in this term, to illustrate
both the justiciability of partisan gerrymander cases
and the manageable judicial standards applicable to
these cases. The Court now has before it challenges to
both a statewide redistricting and a pinpoint redis-
tricting, challenges brought by both the Democratic
Party and the Republican Party, and challenges that

3

both call for the overarching standard of invidiousness,
while at the same time demonstrating the need for
flexible legal and evidentiary standards to permit the
evolution of effective adjudication of these important
claims.

Justiciability of these claims should no longer
be in question. For over three decades, a majority of
the Court has ruled that partisan gerrymander cases
are justiciable, a conclusion consistent with the cog-
nate apportionment cases. There appears to be no prec-
edent for this Court to remove a category of cases from
justiciability to non-justiciability. To do so would be
particularly anomalous in the face of the universal
acknowledgement, among jurists and legal commenta-
tors, that partisan gerrymandering is incompatible
with our democracy because it denies voters a reason-
able opportunity to elect representatives of their
choice, and allows representatives to disregard these
voters. Three three-judge panels in three different ju-
dicial circuits in the past year have now confirmed the
justiciability of these cases.

As these cases demonstrate, partisan gerryman-
ders, and their attendant evils, may come in many
guises. It is therefore important for this Court not only
to hold that partisan gerrymander cases are justiciable
with respect to a statewide apportionment as in Whit-
ford, but also to recognize that the evils wrought by
this conduct may be accomplished subtly, with surgical
precision targeted at one or more districts to accom-
plish a similarly anti-democratic end, as alleged in this
appeal, and as happened in Georgia in 2015. That year,

4

the Republican-controlled Georgia Legislature care-
fully manipulated the lines of two swing districts in
the State House of Representatives, Districts 105 and
111. See Georgia State Conf. of the NAACP, 2017 WL
3698494, at *2 (three-judge panel). Elections in both
districts were very close in 2012 and 2014, and their
racial demographics were shifting to the disadvantage
of the white Republican incumbents. See id. at *2-3. The
2015 changes, in aggregate, moved African-American
voters out of and white voters into both districts. There
was a net gain of 2,191 non-Hispanic white residents
in District 105, according to 2010 Census data, while
there was a net loss of 1,137 non-Hispanic African-
American and 1,073 Hispanic residents in District
105. In District 111, there was a net gain of 1,335
non-Hispanic white residents, and a net loss of 1,251
non-Hispanic African-American and 277 Hispanic res-
idents.’ Id.

This dilutive redistricting accomplished its goal.
In 2016, the white Republican incumbents in both dis-
tricts narrowly defeated their black Democratic chal-
lengers — in one case by 222 votes. Nevertheless, a
federal court dismissed a partisan gerrymandering
claim against Georgia, on the basis that the plaintiffs
failed to plead a “metric” by which to measure discrim-
inatory effect such as disproportionality, asymmetry, or

* Amici are not asking the Court to adjudicate the Georgia
redistricting case, because it is not before the Court. Rather, they
are positing the facts alleged in that case, as if true, for the pur-
pose of providing the Court with a real-life example of a pinpoint
gerrymander.

5

efficiency gaps. See Georgia State Conf. of the NAACP,
2017 WL 3698494, at *12-13. However, these metrics
are relevant only to a statewide analysis and are not
applicable to a district-specific challenge. A pinpoint
redistricting, however, can violate constitutional prin-
ciples as much as a statewide partisan gerrymander.
Any standards adopted by this Court must be suffi-
ciently flexible to apply to both. Accepting the justicia-
bility of partisan gerrymandering cases but adopting
rules that permit subtler but equally pernicious forms
of gerrymandering would allow democracy to die by a
thousand cuts.

The sole basis for doubt as to the justiciability of
partisan gerrymandering cases is the purported lack of
“judicially-manageable standards” to guide resolution
of these cases, a concept derived from the “political
question” cases. There is, however, an accepted, over-
arching, judicially-manageable standard applicable to
these cases — invidiousness. This standard has been a
staple of Equal Protection apportionment cases.

Further, in Village of Arlington Heights v. Metro-
politan Housing Development Corporation, 429 U.S.
252 (1977), this Court has set out clear guidelines used
to determine invidiousness, which have been applied
by courts for decades. The Arlington Heights factors of
the impact of the official action, the specific sequence
of events leading up to the challenged decision, proce-
dural and substantive departures from typical meth-
ods and manners of decision-making, and legislative
and administrative history, including contemporary
statements by members of the decision-making body,

6

are easily applicable to determining the intent behind
district line-drawing in both statewide and pinpoint
gerrymandering cases.

The invidiousness standard allows for the promul-
gation of subsidiary legal standards, which are equally
judicially manageable. However, because partisan ger-
rymandering cases come in different forms, the same
set of subsidiary standards that are applicable to
statewide gerrymander claims may not be applicable
to pinpoint gerrymander claims. For example, some
courts in statewide gerrymandering cases have de-
fined invidiousness in the context of the intent to “en-
trench” a political party, a concept — depending on how
it is defined — that may be inapplicable to pinpoint ger-
rymanders. A broader standard, one that focuses on
the intent to minimize or reduce the voting strength of
a group of voters, may be more easily applicable to both
statewide and pinpoint gerrymanders. Or, perhaps, the
“entrenchment” standard should apply to statewide
gerrymanders and the “minimization” standard to pin-
point gerrymanders. But in any case, the standards are
judicially manageable.

Further, with invidiousness as the overarching
standard, the Court must decide whether the invidious
intent must be proved to be the predominating motiva-
tion for the line-drawing applicable in racial gerryman-
dering cases or “a” motivating factor — the standard
applicable in discrimination cases — or somewhere
in between. Again, whether the differences between
statewide gerrymander cases and pinpoint gerryman-
der cases call for a different level of motivation, the

7

standards are judicially manageable, and the issue
should not affect justiciability.

There is also no need for the Court to announce, in
this case or in Whitford, the precise contours of evi-
dence supporting the Arlington Heights guidelines
that will be applicable in all future cases. Indeed, it
would be a mistake to do so, because one set of eviden-
tiary standards cannot fit all gerrymanders. In the
Georgia case, for example, there is substantial evi-
dence of invidiousness, in statements of those involved
in the decision-making, the use of race to achieve par-
tisan ends, modification of a plan mid-decade, and the
failure to comply with traditional districting princi-
ples. However, while quantitative measures such as
disproportionality, asymmetry, or an efficiency gap
may be relevant evidence of impact in a statewide re-
districting (and thus relevant to proving both intent
and effect), they are not necessarily relevant in a pin-
point gerrymander of one or a handful of districts, such
as that at issue in Georgia. Evidence illustrating im-
pact in pinpoint gerrymandering cases may be offered
in different forms, ranging from the results of actual
elections to recreation of hypothetical elections to sta-
tistical models yet to be developed. Trial courts need
only exercise their traditional role as gatekeepers
in determining the admissibility of such evidence,
as relevant to the facts of the particular case. With
this Court’s guidance, the lower courts may devise the
subsidiary evidentiary standards on a case-by-case

8

basis, as they evolve over time, precisely the way other
constitutional jurisprudenc. ias developed.

There is need, however, for the Court to clarify
that the use of race as a tool to effect a partisan gerry-
mander is an indicium of invidiousness to dispel the
notion that jurisdictions can use partisanship as a de-
fense to pernicious racial gerrymanders.

,
-

ARGUMENT

I. Partisan Gerrymandering Claims Are Jus-
ticiable

For over three decades, a majority of the Court
has ruled that partisan gerrymander cases are justici-
able. Davis v. Bandemer, 478 U.S. 109, 118-27 (1986);
Vieth v. Jubelirer, 541 U.S. 267, 307-68 (2004) (Ken-
nedy, J., concurring; Stevens, J., Souter, J., Ginsburg, J.,
Breyer, J., dissenting). The justiciability of these cases
is consistent with the Court’s ruling in Baker v. Carr,
369 U.S. 186 (1962), that cases brought under the Four-
teenth Amendment challenging the constitutionality
of redistricting decisions did not present non-justiciable
“political questions.”

The plurality in Vieth, who opined that partisan
gerrymander claims were not justiciable because of the
lack of “judicially-manageable standards,” provided
not a single example where this Court had moved a
category of cases previously ruled justiciable into
the non-justiciable category. Amici are unaware of a

9

comparable decision. Barring the judicial review of
partisan gerrymandering claims would be particularly
anomalous because this Court has itself stated that
partisan gerrymanders are incompatible with demo-
cratic principles. Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (al-
terations in original) (quoting Vieth v. Jubelirer, 541
U.S. 267, 292 (2004) (plurality opinion)).

This is because such conduct goes “to the adequacy
of representation.” Bandemer, 478 U.S. at 125. From
the voter’s perspective, partisan gerrymandering has
been characterized as denying a particular group “its
chance to effectively influence the political process,” id.
at 132-33, and an effective opportunity to elect repre-
sentatives of their choice in violation of the Equal Pro-
tection Clause. Jd. at 167-68 (Powell, J., concurring and
dissenting). Justice Souter has described it as a “fair-
ness” issue, deviating from the constitutional standard
that each political group is supposed to have the same
chance to elect their representatives. Vieth, 541 U.S. at
343 (Souter, J., dissenting).

To others, the problem is “conceding to legislatures
a power of self-selection,” which is in tension with a
Constitution “whose most arresting innovation was
the dispersion of power.” Daniel D. Polsby & Robert D.
Popper, The Third Criterion: Compactness as a Proce-
dural Safeguard Against Partisan Gerrymandering, 9
Yale L. & Pol’y Rev. 301, 304 (1991). Justice Stevens
believes that the practice violates the decision-maker’s
duty to remain impartial. Vieth, 541 U.S. at 326 (Ste-
vens, J., dissenting). Justice Kennedy has suggested

10

that partisan gerrymandering may raise First Amend-
ment issues because political classifications are used
“to burden a group’s representational rights.” Jd. at
315 (Kennedy, J., concurring in the judgment). As
Judge Wynn recently summarized in a three-judge
panel’s rejection of North Carolina’s congressional re-
districting: “Partisan gerrymandering runs contrary to
both the structure of the republican form of govern-
ment embodied in the Constitution and fundamental
individual rights preserved by the Bill of Rights.” Com-
mon Cause, et al. v. Rucho, United States District Court
for the Middle District of North Carolina, No. 1:16-CV-
01164-WO-JEP, Doc. 116 at 46.

Regardless of whether the constitutional source of
the right is the First Amendment, the Fourteenth
Amendment, or the Elections Clause, authorities agree
that the consequences of partisan gerrymandering are
profound. Lawmakers may choose their voters for the
purpose of ensuring a near-certain result, which allows
elected officials to disregard the citizenry’s needs and
concerns. Laughlin McDonald, The Looming 2010 Cen-
sus: A Proposed Judicially-Manageable Standard and
Other Reform Options for Partisan Gerrymandering,
46 Harv. J. on Legis. 243, 244 (2009). This in turn leads
to the voters being denied an “effective voice in policy
making,” and the ability to protect their rights. Jd.
Even worse, as one commentator has said, “districts in-
tentionally designed to subordinate voters based on
party preference are more likely to actually suppress
representation of that political viewpoint, whether
that suppression is measurable or not.” Levitt, Justin, Jn-
tent is Enough: Invidious Partisanship in Redistricting

11

(July 14, 2017), William & Mary Law Review, Vol. 59
(Forthcoming); Loyola Law School, Los Angeles Legal
Studies Research Paper No. 2017-24, abstract availa-
ble at SSRN: https://ssrn.com/abstract=3011062.

Partisan gerrymanders come in various guises,
although they perpetuate the same evils. While Whit-
ford centers on statewide redistricting, this appeal and
the Georgia redistricting case focus on a limited num-
ber of districts. Of the 7,556 residents surgically moved
from Georgia State House District 105 into a neighbor-
ing safe Republican district, 2010 Census data indi-
cates that 63.8 percent are African-American or
Hispanic; they were replaced by 7,380 residents, of
whom only 35.6 percent are African-American or His-
panic. See Georgia State Conf. of the NAACP, 2017 WL
3698494, at *2. With respect to District 111, more than
30,000 residents were shuttled in and out of four
adjoining districts (each of which has a population
of less than 55,000), increasing the white population
percentage by 2.3 percentage points, and decreasing
the non-Hispanic African-American percentage by the
same amount. Jd. at *3. These changes, while relatively
small in comparison to a statewide apportionment,
had a decisive effect in countering the demographic
shifts in the populations of Districts 105 and 111. Jd.
at *2-3.

The reason is obvious: the State House elections in
both districts in 2012 and 2014 were close and featured
racially polarized voting patterns, both districts were
experiencing an increase in the registered voter per-
centage due to demographic changes, and minority

12

voters are perceived as reliably supporting Democratic
State House candidates. Jd. The Republican-dominated
Georgia Legislature did not want to risk the incum-
bents in either district losing to a Democratic chal-
lenger. The Legislature accomplished its goal by
splitting precincts and moving census blocks, for which
there are racial data but no electoral information. See
id. at *12. Moreover, reflecting the hurried and secret
nature of this legislation, the adoption of the 2015
mid-census redistricting of Georgia House of Repre-
sentatives District 105 and 111 (H.B. 566) did not
follow the normal legislative procedures. African-
American legislators serving on the House Legislative
and Congressional Reapportionment and the Senate
Reapportionment and Redistricting Committees were
excluded from the process of drawing and negotiating
the plans ultimately codified in H.B. 566. Id. at *2.

The November 2016 races for House District 105
and 111 were each close and proved just how effective
these changes could be in district elections. In 2016,
the white Republican incumbents in both districts
again ran against African-American candidates who
were Democrats. Jd. at *2-3. Despite the adjustments
made by the legislature to tilt the outcome and the
presence of racially polarized voting patterns, the mar-
gins remained uncomfortably close. See id. In the elec-
tion for House District 105, the margin of victory was
so close that the race went to recount. The incumbent
ultimately defeated her challenger by only 222 votes.
Id. at *2. In House District 111, the incumbent’s mar-
gin of victory in that election was only 946 votes, an

13

even tighter result than in past races. /d. at *3. But for
H.B. 566, and the mid-decade redistricting, African-
American Democrats would likely have won both races
in these districts. Jd. at *2-3; Deposition of Dan O’Con-
nor taken in Georgia State Conference of the NAACP, et
al. v. State of Georgia, et al., F. Supp. 3d ___, 2017
WL 3698494 (Aug. 25, 2017) (“O’Connor Depo.”) at pp.
76-77; 90 available at https://lawyerscommittee.org/wp-
content/uploads/2018/01/1213170ConnorF ull. pdf.

The minority voters in these districts have there-
fore been deprived of their chance to have an effective
voice and to influence their representatives because of
their race and presumed political affiliation. It cannot
be the law that it is constitutional for one political
party to make a series of incremental changes de-
signed for one purpose and one purpose only: to stack
the deck by moving opposing party members out of one
district and into another whenever an election be-
comes close. That is the antithesis of a true democracy.
Unless pinpoint partisan gerrymandering cases are
justiciable, the Court is consigning democracy to die by
a thousand cuts. Clearly, partisan gerrymandering is
an area where the Court must exercise its paramount
authority “to say what the law is.” Marbury v. Madison,
5 U.S. 137, 177 (1803).

14

Il. Invidious Intent to Minimize the Voting
Power of a Political Element Is a Judicially-
Manageable Standard

The sole basis for doubt as to the justiciability of
partisan gerrymandering cases is the purported lack of
“judicially-manageable standards” to guide resolution
of these cases. See, e.g., Vieth, 541 U.S. at 277-90 (plu-
rality opinion). However, the overarching standard of
an invidious intent to minimize the voting strength of
a group of voters is a time-tested, judicially-managea-
ble standard.

That justiciability is contingent on the availability
of judicially-manageable standards finds its genesis in
Baker v. Carr, 369 U.S. 186 (1962), where the Court dis-
tinguished the “political questions” inherent in cases
brought under the Guaranty Clause’ from those impli-
cated in cases brought under the Fourteenth Amend-
ment, such as partisan gerrymandering cases. In the
former, the Court explained that it had not been able
to identify a “set of judicially manageable standards
which courts could utilize independently in order to
identify a State’s lawful government.” Jd. at 223.‘

®° The Guaranty Clause requires the federal government to
“guarantee to every State in the Union a Republican Form of Gov-
ernment.” U.S. Const. art. IV, § 4.

* The leading Guaranty Clause case in this respect is Luther
vu. Borden, 48 U.S. 1 (1849), where the Court was asked to rule in
effect that the Dorr Rebellion’s alternative government was law-
ful, superseding Rhode Island’s charter government, because the
latter limited the vote to landowners. Chief Justice Taney, writing
for the Court, rejected the claim, and, in so doing, created the

15

Discrimination claims brought under the Fourteenth
Amendment, however, do not face this obstacle:

Nor need the appellants, in order to succeed
in this [Equal Protection] action, ask the
Court to enter upon policy determinations for
which judicially manageable standards are
lacking. Judicial standards under the Equal
Protection Clause are well developed and fa-
miliar, and it has been open to courts since the
enactment of the Fourteenth Amendment to
determine, if, on the particular facts, they
must, that a discrimination reflects no policy,
but simply arbitrary and capricious action.

Id. at 226.

A. Invidiousness Is an Accepted, Judicially-
Manageable Standard

The settled benchmark for discrimination claims
brought under the Equal Protection Clause is invidi-
ousness. See, e.g., Williams v. Rhodes, 393 U.S. 23, 30-
31 (1968) (noting that “we have .. . held that ‘invidi-
ous’ distinctions cannot be enacted without a violation
of the Equal Protection Clause”). This Court has con-
sistently applied this standard to various types of
Equal Protection challenges to redistricting, including
racial gerrymandering, “one person, one vote,” and vote
dilution claims.’ In the past, this Court has also

“political question” doctrine. The decision, of course, predated the
enactment of the Fourteenth Amendment.

® See, e.g., Reynolds v. Sims, 377 U.S. 533, 656-66 (1964) (a
redistricting plan impairs Fourteenth Amendment rights if it

16

suggested that invidiousness is relevant to the analy-
sis of partisan gerrymandering claims.® A standard
emphasizing the offensiveness of the line-drawers’ con-
duct is consistent with the Court’s traditional usage of
“invidiously discriminatory animus,” as acknowledged
by Justice Scalia in his discussion of that phrase by
this Court in Griffin v. Breckenridge, 403 U.S. 88
(1971):

The nature of the ‘invidiously discriminatory
animus’ Griffin had in mind is suggested both
by the language used in that phrase (‘invidi-
ous ... [tlending to excite odium, ill will, or
envy; likely to give offense; esp., unjustly
and irritatingly discriminating,’ Webster’s
Second International Dictionary 1306 (1954))
and by the company in which the phrase is
found (‘there must be some racial, or perhaps

employs “invidious discriminations based upon factors such as
race or economic status”); Rogers v. Lodge, 458 U.S. 613, 622 (1982)
(affirming finding that at-large system was being maintained “for
the invidious purpose of diluting the voting strength of the black
population”).

® Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (multimem-
ber districts “may be vulnerable” to constitutiona! challenges “if
racial or political groups have been fenced out of the political pro-
cess and their voting strength invidiously minimized”); Davis v.
Bandemer, 478 U.S. 109, 124 (1986) (“(djiluting the weight of votes
because of place of residence impairs basic constitutional rights
under the Fourteenth Amendment just as much as invidious dis-
criminations based upon factors such as race... .”) (quoting
Reynolds, 377 U.S. at 565-66); Vieth, 541 U.S. at 307 (Kennedy, J.,
concurring in the judgment) (a redistricting plan constitutes an
unconstitutional partisan gerrymander if political classifications
“were applied in an invidious manner or in a way unrelated to any
legitimate legislative objective”).

17

otherwise class-based, invidiously discrimina-
tory animus,’ Griffin, 403 U.S., at 102, 91
S. Ct., at 353 (emphasis added)).

Bray v. Alexandria Women’s Health Clinic, 506 U.S.
263, 274 (1993).

Not only has the overarching legal standard of in-
vidiousness been firmly established in discriminatory
intent claims, but this Court has set clear guidelines
for approaching proof of invidiousness through both di-
rect and circumstantial evidence. Vill. of Arlington
Heights, 429 U.S. at 266-68. These factors include the
impact of the official action, the specific sequence of
events leading up to the challenged decision, depar-
tures from the normal procedure and substantive de-
partures from typical methods and manners of
decision-making, and legislative and administrative
history, including contemporary statements by mem-
bers of the decision-making body. Jd. Having regularly
applied the Arlington Heights factors, courts are sea-
soned in analyzing the invidiousness of alleged dis-
criminatory practices. Invidiousness bears all of the
hallmarks of a judicially-manageable standard. In the
context of partisan gerrymandering, the invidiousness
standard would prohibit the drawing of a district’s
lines for the purpose of advantaging one political party
(or candidate) over another, such that the ability of vot-
ers to participate equally in the political process is sub-
stantially harmed.

18

B. The Court Should Adopt Such Subsidiary
Legal Standards As Are Relevant to the

Particular Type of Gerrymander

Partisan gerrymandering claims do not present an
absence of judicially-manageable standards, but, ra-
ther, as Justice Kennedy has termed it, a search for
“subsidiary” standards. Vieth, 541 U.S. at 314. In Jus-
tice Kennedy’s view, that search may be for ways of
quantifying the effect of the gerrymander. However, be-
cause partisan gerrymander cases come in so many dif-
ferent forms, it is not obvious that the same set of
subsidiary legal standards will apply to all partisan
gerrymander cases.

1. The Definition of the Type of Intent

Applicable to Pinpoint Gerrymander
Claims May Be Different from That

Applicable to Statewide Gerryman-
der Claims

The difference between the Wisconsin statewide,
post-census redistricting challenged in Whitford on the
one hand and the district-specific redistrictings in this
appeal and in Georgia in 2015 on the other demon-
strates the need for flexibility in the definition of
the type of intent a partisan gerrymandering plaintiff
must prove.

For example, in statewide challenges courts have
used variations on “entrenchment” standards. The dis-
trict court in Whitford employed a standard requiring
that the legislature possess “an intent to entrench a

19

political party in power” for the remainder of the dec-
ade, or “to make the political system systematically un-
responsive to a particular segment of the voters based
on their political preference.” Whitford, 218 F. Supp. 3d
837, 887 & n.170, 896 (W.D. Wis. 2016). The district
court in the North Carolina redistricting case ruled
that “a plaintiff satisfies the discriminatory purpose of
intent requirement by introducing evidence establish-
ing that the state redistricting body acted with an in-
tent to ‘subordinate adherents of one political party
and entrench a rival party in power.’” Common Cause
v. Rucho, slip op. at 86 (quoting Ariz. State Leg., 135
S. Ct. at 2658).

The entrenchment standard may be applicable
when adjudicating a statewide redistricting plan. It
is not necessarily applicable in smaller-scale, subtler,
yet equally invidious, gerrymanders, such as the
district-specific claim in this appeal and the pinpoint,
mid-census redistricting enacted for the purpose of
making a handful of highly competitive districts safer
for incumbents of a political party that was already en-
joying a super-majority, as occurred in Georgia in 2015.
In cases such as these, the evil alleged is the simple
practice of stacking the deck incrementally in a partic-
ular district, a concept the Court has recognized in its
racial gerrymandering jurisprudence. See, e.g., Cooper
v. Harris, 137 S.Ct. 1455, 1481-82 (2017) (holding
North Carolina Congressional Districts 1 and 12 were
racially gerrymandered); Bethune-Hill v. Va. State
Bd. of Elections, 137 S. Ct. 788, 799 (2017) (analyzing
whether race predominated in drawing 11 of 12

20

Virginia House of Delegate districts); Ala. Legislative
Black Caucus v. Alabama, 135 S. Ct. 1257, 1264 (2015)
(holding that analyzing racial gerrymandering in the
context of the state “as a whole” is legally erroneous
and the district court erred in concluding that race did
not predominate in the creation of Alabama Senate
Districts 7, 11, 22, or 26).

Depending on how “entrenchment” is defined,
and the particular circumstances of the case, an “en-
trenchment” standard might be applicable to a district-
specific gerrymander case. However, if “entrenchment”
is meant to require proof of durable effect of the gerry-
mander, it would not appear to fit pinpoint gerryman-
ders, where the evil is not durability, but simply the
use of political power for the sole purpose of drawing
lines to win the next election. A mid-census cycle line-
drawing done for the express purpose of helping one
candidate win in one district is no less unlawful than
a once-in-a-decade redistricting for the express pur-
pose of entrenching the majority party in power.

There is no need to shoehorn all cases into an “en-
trenchment” standard, when it is clear that something
less than entrenchment is constitutionally prohibited.
There is an existing intent standard that would easily
apply to both statewide and district-specific cases. In
Burns v. Richardson, a one person, one vote case, the
Court defined a multi-member apportionment scheme
as having a discriminatory effect if it is shown that,
“‘designedly or otherwise . . . under the circumstances
of a particular case, [it] would operate to minimize or
cancel out the voting strength of racial or political

21

elements of the voting population.’” 384 U.S. 73, 88
(1966) (emphasis added) (quoting Fortson v. Dorsey,
379 U.S. 433, 439 (1965)). This standard is consistent
with this Court’s pronouncements in partisan gerry-
mandering cases that an electoral district “may be vul-
nerable” to constitutional challenges “if racial or
political groups have been fenced out of the political
process and their voting strength invidiously mini-
mized,” Gaffney v. Cummings, 412 U.S. 735, 754 (1973),
and that “each political group in a State should have
the same chance to elect representatives of its choice
as any other political group.” Bandemer, 478 U.S. at
124.

A standard focused on an invidious intent to min-
imize or cancel out the votes of certain elements of the
voting population based on their political association
is more rigorous than the “mere intent to disadvantage”
standard offered by the plurality in Bandemer, 478
U.S. 109.’ It also provides courts with the flexibility
needed to apply to both statewide and pinpoint gerry-
manders because the affected “elements of the voting
population” can be located in a single district or
throughout the state.

Finally, it is a standard that is compatible with
treating partisan gerrymander claims as arising out of
the First Amendment, as is the claim in this appeal.
The district court in this case ruled that “the plaintiff
must allege that those responsible for the map redrew

’ Vieth, 541 U.S. at 285 (plurality opinion) (characterizing the
standard offered by the Bandemer plurality).

22

the lines of his district with the specific intent to im-
pose a burden on him and similarly situated citizens
because of how they voted or the political party with
which they were affiliated.” Shapiro v. McManus, 203
F. Supp. 3d 579, 596 (D. Md. 2016) (emphasis in origi-
nal). The court in the North Carolina redistricting case
described the First Amendment claim as one favoring
or disfavoring “individuals or entities that support a
particular candidate or political party.” Common Cause
v. Rucho, slip op. at 162-63. These formulations are con-
sistent with one focusing on the minimizing or cancel-
ling out the votes of particular political elements.*

Ideally, the Court should set a standard in this dis-
trict-specific gerrymandering case that is sufficiently
broad and flexible to apply to cases such as that pre-
sented in a statewide gerrymander case. However, if
proof of some sort of durable “entrenchment” is deemed
essential to a statewide case such as Whitford, the
Court should make it clear that the different circum-
stances surrounding pinpoint redistricting may neces-
sitate a different framework from the one used in
statewide gerrymandering cases.

* Plaintiffs in other cases have also brought partisan gerry-
mander cases under the Elections Clause, U.S. Const. art. I, § 2.
Although invidiousness is not an express element of such claims,
the Clause has been construed as prohibiting the States, in the
exercise of their powers under that Clause, from infringing on
other constitutional rights. See generally Common Cause v. Rucho,
slip op. at 177-78 and cases cited therein.

23

2. There Are Accepted and Judicially
Manageable Standards as to the Level
of Intent Applicable to Pinpoint Ger-

rymandering Cases

Assuming invidiousness is the overarching stand-
ard, this Court must determine the level of intent
necessary to support a claim of partisan gerrymander-
ing. In Vieth, the plurality rejected a “predominant”
standard as judicially unmanageable because it is
“indeterminate” and “vague.” Vieth, 541 U.S. at 284-85
(plurality opinion). In Bandemer, the plurality did not
appear to require that the partisan intent be the only
or even primary motivation. Bandemer, 478 U.S. at 127
(plurality opinion). More recently, the court in Com-
mon Cause v. Rucho rejected a “predominant” standard
as inconsistent with the Arlington Heights approach to
discriminatory intent. Common Cause v. Rucho, slip op.
at 84-85.

Again, because of the various forms of partisan
gerrymanders, there is a need for flexibility in deter-
mining the level of intent sufficient to support the
claim. In statewide challenges, given the multiplicity
of purposes that inform the statewide plan, the “pre-
dominant” standard may be difficult to apply, and it
should be sufficient for a plaintiff to prove that parti-
sanship was “a” motivating factor for the line-drawing.
See Arlington Heights, 429 U.S. at 265-66 & n.11 (“[tihe
search for legislative purpose is often elusive enough

. without a requirement that primacy be ascer-
tained”). Once invidious intent to gerrymander for par-
tisan purposes is established, “the burden shifts to the

24

governmental defendant to prove that a legitimate
state interest or other neutral factor justified such dis-
crimination,” Common Cause v. Rucho, slip op. at 145,
i.e., that the jurisdiction would have drawn the same
lines even without the discriminatory intent. Arlington
Heights, 429 U.S. at 270, n.21.

The same holds if the claim is viewed under the
First Amendment, as the “motivating-factor require-
ment in First Amendment retaliation claims parallels
the intent requirement in Equal Protection Claims.”
Common Cause v. Rucho, slip op. at 163. A plaintiff
“must show that her protected First Amendment activ-
ities were a ‘motivating factor’ behind the challenged
retaliatory action.” Common Cause v. Rucho, slip op. at
163 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 & n.2 (1977)).°

The Arlington Heights standard of discriminatory
intent being “a” motivating factor for the line-drawing
may be sufficient to support a claim of partisan gerry-
mandering in the pinpoint context also. However, if a
predominance standard is applied to these cases, as
some have suggested, these cases would be subject to a

* In this context, the decision of the trial court below, requir-
ing proof of a First Amendment gerrymander claim that “but for
the gerrymander, the challenged effect (here, the switch in politi-
cal power in the Sixth District) would not have happened,” which
could be satisfied only by a showing that the plaintiffs’ candidate
would have won reelection had the original map remained intact,
Benisek, slip op. at 18, is not a correct statement of the law. It is
contrary to the rule in Mt. Healthy that the unconstitutional re-
taliatory intent need be only “a” motivating factor. See Benisek,
slip op. at 59-61 (Niemeyer, J., dissenting).

25

strict scrutiny analysis. Once predominant partisan
intent is found, the burden shifts to the State to
“demonstrate that its districting legislation is nar-
rowly tailored to achieve a compelling interest,” not
merely a legitimate state interest. Miller v. Johnson,
515 U.S. 900, 920-21 (1995).

Alternatively, the Court may adopt a flexible
standard as to the level of invidiousness necessary to
support a finding of unconstitutional partisan gerry-
mandering. The focus on the invidiousness of the
decision-making relieves the courts of the need to
adopt a one-size-fits-all subsidiary standard. The
stronger the evidence of invidiousness, the sounder
the basis for the Court to determine that the impact
of the line-drawing is caused by an unconstitutional
intent to minimize the voting strength of a particular
political element.

C. The Georgia Case Demonstrates the Sort
of Evidence Relevant to Pinpoint Gerry-
mander Claims

Applying the Arlington Heights factors to deter-
mining invidiousness in redistricting cases, these fac-
tors encompass not only express statements of
decision-makers’ intent, but also trial-tested evidence
such as using race as a proxy for party, deviations from
traditional districting principles, redistricting in the
middle of a census cycle, and other forms of manipula-
tion that indicate the decision-maker strayed from
typical procedures or made substantive choices that

26

furthered no legitimate governmental interest. Addi-
tionally, of course, injurious effect must be proved. See,
e.g., League of United Latin Am. Citizens (““LULAC”) v.
Perry, 548 U.S. 399, 422 (2006) (addressing appellants’
contention that the Texas Legislature “intentionally
sought to manipulate” districts through their popula-
tion variances). Of course, not all of these elements are
going to be present in every case, but some salient fac-
tors are laid out below. The Georgia case provides a
vivid example of some of these most important factors
at play.

1. Statements by Officials Involved in
the Line-Drawing Decision

As the court in Common Cause v. Rucho noted,
“the Supreme Court has never recognized that a legis-
lature may draw district lines for the purpose of dimin-
ishing or minimizing the voting strength of supporters
of a particular party or citizens who previously voted
for representatives of a particular party. . . .” Common
Cause v. Rucho, slip op. at 62. Thus, direct evidence of
invidious intent such as express statements that the
purpose of the line-drawing was to favor one political
element may be virtually conclusive on the issue.

In the lawsuit brought by the Georgia redistrict-
ing plaintiffs, there are express, unequivocal admis-
sions that the purpose of redistricting was to protect
Republican incumbents. Indeed, one staff member of
the Legislative and Congressional Reapportionment
Office (the “Reapportionment Office”) confirmed that
he generally understood one of his roles to be that of

27

maintaining Republican control of the Georgia Gen-
eral Assembly. {(O’Connor Depo. at pp. 51-52).

Gina Wright, the Executive Director of the Reap-
portionment Office, is the individual who, at the re-
quest and consent of incumbent Republican legislators
Chandler and Strickland, redrew the maps for Georgia
House Districts 105 and 111 in 2015. [Deposition of
Gina Wright taken in Georgia State Conference of the
NAACP. et al. v. State of Georgia, et al., F. Supp. 3d
, 2017 WL 3698494 (Aug. 25, 2017) (“Wright
Depo.”), available at https:/lawyerscommittee.org/wp-
content/uploads/2018/01/112017WrightFull.pdf}. The
changes proposed by Ms. Wright to those districts were
then adopted and passed into law by the Republican
majority in the Georgia General Assembly through
H.B. 566. Ms. Wright freely admitted that the reason
for the changes to Districts 105 and 111 was to keep
the incumbent Republicans safe in their campaigns for
reelection or, in her words, to give them a “political
boost.” Jd. at 22, 219.

As Ms. Wright further testified, the “objective [for
the redistricting] was to make these districts, if at all
possible anyway, better for these incumbents to get
reelected. .. .” [Wright Depo. at p. 30). When asked
what the representatives from District 105 and Dis-
trict 111 “wanted to achieve” when they came to her
office for help, she confirmed: “[t/hey were looking for
a political advantage. . . .” [Wright Depo. at pp. 21-22).
As to her efforts to help Representative Chandler from
District 105, Ms. Wright agreed that “part of the con-
versation was about [Chandler] trying to maximize the

28

chances of her being able to retain her seat.” [Wright
Depo. at p. 23]. As to her efforts to help Representative
Strickland of District 111, Ms. Wright admitted that it
would “be fair to say that the goal was for Representa-
tive Strickland in 111 to be able to maintain his seat.”
[Wright Depo. at pp. 27-29; 175-77).

Ms. Wright also freely admitted that there is a cor-
relation between race and partisanship in the State of
Georgia, and that fact was taken into consideration in
redrawing the maps for both Districts 105 and 111.
[Wright Depo. at pp. 29-32]. Ms. Wright specifically tes-
tified that racial demographics were considered when
the maps were drawn. [Wright Depo. at pp. 29-32].

2. The Use of Race to Achieve a Parti-
san End in Line-Drawing

The use of race as a proxy for partisan goals
has been a recurring theme in redistricting litigation
over the years, which shows no sign of abating.”®

See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1476-77 & n.7
(2017) (rejecting State claim that politics alone drove drawing of
congressional district, not race: “In other words, the sorting of vot-
ers on the grounds of their race remains suspect even if race is
meant to function as a proxy for other (including political) char-
acteristics.”); LULAC v. Perry, 548 U.S. 399, 440 (2006) (rejecting
claim that redrawing of Congressional! district was primarily for
political, not racial, reasons); Perez v. Abbott, No. 5:11-cv-00360-
OLG-JES-XR, 2017 WL 3495922 at *41 (W.D. Tex. Aug. 15, 2017)
(describing State’s purpose of adding significant population from
Travis County into Congressional District 35 was “to use race as
a tool for partisan goals”); id., 2017 WL 1450121 at *14-16 (W_D.
Tex. Apr. 20, 2017) (rejecting excuse that increasing or maintain-
ing the Spanish surname voter percentage while simultaneously

29

Unfortunately, this is precisely what the Georgia Leg-
islature did when redrawing Georgia State House of
Representatives Districts 105 and 111 in 2015. See
Georgia State Conf. of the NAACP, 2017 WL 3698494,
at *12. The evidence in that case demonstrates that the
Reapportionment Office knew that Districts 105 and
111, through recent demographic shifts, were becom-
ing perilously close to having a 40 percent African-
American voter registration. [|O’Connor Depo. at pp.
140-41, 156]. Personnel in the Reapportionment Office
confirm that as a significant metric to maintaining Re-
publican control over a district; indeed, once the Afri-
can-American population of a district reached that
level, it virtually ensured that Democrats would win
the district. [O'Connor Depo. at pp. 141-42, 153-56}.
The Reapportionment Office also knew that, as a re-
sult of this metric, both Representatives Chandler
and Strickland had come very close to losing their
reelection campaigns in 2014. [O’Connor Depo. at
pp. 65, 66, & 141-42; Wright Depo. at pp. 193-96;
Wright Depo. Exhibit 38]. The math was simple: to
preserve the safety of these Republican incumbents
in any reelection challenge, would require cutting
the African-American percentage of the population in
the districts, and specifically the African-American

and intentionally minimizing Latino voters’ ability to elect in
State House Districts 78 and 117 was partisan gerrymandering);
id., 2017 WL 962947, at *59 (W.D. Tex. Mar. 10, 2017) (describing
“mapdrawers as willing to disadvantage minorities to gain parti-
san advantage. . . and that they were willing to use race to gain
partisan advantage . . . and limit the number of Democrat dis-
tricts overall”).

30

registered voters in Districts 105 and 111. And that is
precisely what the Georgia Legislature did.

Employing race to further partisan interests is per
se evidence of an invidious politically discriminatory
intent. This may occur by using racial data as a proxy
for partisan performance, intentionally packing or
cracking minority communities, using arbitrary nu-
merical racial thresholds not based on evidence of mi-
nority voters’ ability to elect candidates of their choice,
splitting voting precincts or voting tabulation districts
using racial data, artificially inflating the minority
percentage in a low-turnout district to benefit the
other political party, or other means.

It is important for the Court to clarify that using
race as a proxy for party is an indicium of invidious-
ness in partisan gerrymander cases because courts
have not been uniform in their response to the de-
fense of partisanship in racial discrimination cases.''

" See, e.g., Miller v. Johnson, 515 U.S. 900, 914 (1995) (stating
that the “use of race as a proxy” for “political interest(s)” is “pro-
hibitled)”); League of United Latin American Citizens v. Perry, 548
U.S. 399, 440 (2006) (finding that the Texas redistricting plan bore
“the mark of intentional discrimination” on the basis of race when
the legislature used racial considerations to achieve a partisan
result); Veasey v. Abbott, 830 F.3d 216, 241 (5th Cir. 2016) (en banc)
(discussing the rapid increase in minority populations in Texas
such that “the party currently in power is ‘facing a declining voter
base and can gain partisan advantage’ through a strict voter ID
law” was evidence that could support a finding of intentional! dis-
crimination based on race); N.C. State Conf. of NAACP v. McCrory,
831 F.3d 204, 222 (4th Cir. 2016) (“intentionally targeting a
particular race’s access to the franchise because its members
vote for a particular party, in a predictable manner, constitutes

31

Discriminating on the basis of race to achieve a parti-
san goal should not be a defense against a racial dis-
crimination claim. Even if partisanship were a
legitimate goal, using a suspect classification as the
means of achieving that goal is unconstitutional. See,
e.g., Packingham v. North Carolina, 137 8S. Ct. 1730,
1732 (2017) (holding that a North Carolina law pre-
venting sex offenders from using social media for the
purpose of protecting vulnerable victims was unconsti-
tutional because it was unnecessarily burdensome on
First Amendment rights); Price Waterhouse v. Hopkins,
490 U.S. 228, 241 (1989) (identifying the standard un-
der Title VII when a plaintiff proves that her gender

discriminatory purpose”); Perez v. Abbott, 2017 WL 962947, at *63
(W.D. Tex. Mar. 10, 2017) (finding that the redistricting plan was
intentionally discriminatory because the legislature drew the
plan on the basis of race “using race as a proxy for voting behav-
ior”); Patino v. City of Pasadena, 230 F. Supp. 3d 667, 727-28 (S.D.
Tex. Jan. 6, 2017) (finding that “(bly clearly and explicitly intend-
ing to diminish Latinos’ voting power for partisan ends, Pasadena
officials intentionally discriminated on the basis of race”); contra
Rodriguez v. Harris Cty., Tex., 964 F. Supp. 2d 686, 804 (S.D. Tex.
2013) (declining to find racial considerations “steered the redis-
tricting process” because “proclivities” of Latinos to vote Demo-
eratic and Anglos to vote Republican, “without more, cannot
transform partisanship into race discrimination”); Cano v. Davis,
211 F. Supp. 2d 1208, 1248 (C.D. Cal. 2002) (California legislature
had non-racial goals such as “protecting incumbents” and “ad-
vancing partisan interests” and the redistricting plan was there-
fore not intentionally discriminatory); Martinez v. Bush, 234
F. Supp. 2d 1275, 1296-98 (S.D. Fla. 2002) (finding that the
“Republican-controlled legislature intended to maximize the
number of Republican congressional and legislative seats through
the redistricting process” and engaged in a “raw exercise of ma-
jority legislative power” but did not intentionally discriminate on
the basis of race).

32

played a motivating part in an employment decision);
Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (Nebraska
law prohibiting teaching any language other than Eng-
lish through eighth grade, enacted to promote civic de-
velopment, violated the Fourteenth Amendment). In
the context of a partisan gerrymandering claim, it is
itself an indication that the jurisdiction is acting un-
constitutionally.

3. Modifying a Plan Mid-Decade

If a legislature modifies a legitimately drawn,
legislatively-enacted plan compliant with the one per-
son, one vote principle, and enacts an unnecessary
mid-census redistricting plan solely for the purpose of
making swing districts less competitive to the benefit
of the party in power, that is an indicium of an invidi-
ous partisan motive.

Again, the 2015 Georgia State House redistricting
plan is an instructive example of a mid-census redis-
tricting enacted with such an invidious intent. There,
the Georgia Legislature needlessly redrew district
boundaries that complied with the one person, one vote
principle and had survived scrutiny by the Depart-
ment of Justice. See Georgia State Conf. of the NAACP,
2017 WL 3698494, at *2. Its purpose in doing so was to
move the goal posts to help white Republican incum-
bents who had narrowly defeated black Democratic
challengers in swing districts that were experiencing
an increase in minority voter registration percentage

33

due to demographic changes."* Georgia State Conf. of
the NAACP, 2017 WL 3698494, at *2-3. In the case of
State House District 105, Representative Joyce Chan-
dler won by 554 votes in 2012 and 789 votes in 2014,
and has since acknowledged that her district is becom-
ing increasingly “diverse.” In the 2016 election, under
the new lines, Chandler prevailed by 222 votes. See id.
at *2.

4. Deviation from Traditional District-
ing Principles

While a jurisdiction can engage in invidious dis-
crimination even if it complies with traditional dis-
tricting principles, Bethune-Hill v. Va. State Bd. of
Elections, 137 S. Ct. 788, 799 (2017), failure to comply
with such principles is evidence of discriminatory
intent. Those traditional principles include, among
other things, considerations of maintaining population

“% While this Court confirmed in League of United Latin
American Citizens v. Perry (LULAC) that the Constitution does
not prohibit mid-decade redistricting per se, mid-decade modifica-
tions of the swing districts by the same party that drew the lines
merit scrutiny, particularly when that party has already achieved
super-majority status. In LULAC, the Supreme Court stated that
(1) partisan gain was not necessarily the “sole motivation” for the
entire redistricting plan, id. at 417; (2) the Republican legislature
was replacing a court-ordered plan, which had previously en-
trenched the Democrats, a party on the verge of minority status,
id. at 416, 419; and (3) the new plan made the “party balance more
congruent to statewide party power.” /d. at 419. As noted above,
the facts of the Georgia redistricting are easily distinguishable
from those in LULAC.

34

equality, geographic compactness, and avoiding the
splitting of precincts and counties.

In the lawsuit brought by the Georgia redistrict-
ing plaintiffs, there are numerous examples of the fail-
ure by the General Assembly to comply with
traditional districting principles in drawing the maps
for Districts 105 and 111, and the only real explanation
for the failure to do so was the goal of protecting Re-
publican incumbents. [Wright Depo. at pp. 22 & 219;
Expert Report of Jowei Chen, filed in Georgia State
Conference of the NAACP. et al. v. State of Georgia, et
al., ___ F. Supp. 3d ___, 2017 WL 3698494 (Aug. 25,
2017), ECF Doc. No. 63-1 (“Chen Expert Report”) at pp.
26-32).

The 2015 Plan, for example, created more signifi-
cant population deviations for both Districts 105 and
111, [Chen Expert Report at pp. 26-28), and worsened
the geographic compactness of both Districts 105 and
111. [Chen Expert Report at p. 29]. Additionally, in
House District 111, the 2015 Plan substantially in-
creased the number of split precincts from two to five.
Indeed, the 2015 Plan split precincts, counties, and cit-
ies. (Chen Expert Report at pp. 29-32]. Thus, there was
a significant violation of traditional districting princi-
ples in redrawing Districts 105 and 111. (Chen Expert
Report at pp. 26-32].

5. Injurious Effect

Disproportionality in the results of statewide elec-
tions — i.e., the gap between a party’s vote share and

35

seat share in a state — does not in and of itself prove an
unconstitutional statewide partisan gerrymander.
Bandemer, 478 U.S. at 130-31. However, when com-
bined with other factors, it can support the conclusion
of an invidious intent to minimize the voting strength
of a discrete political element. The same is true of other
statewide measures of impact such as asymmetry (the
extent to which the percent of votes of one party does
not translate to the percent of votes achieved by the

opposing party) or the efficiency gap.

Such statewide measures of impact, however, are
not applicable to pinpoint gerrymanders, because proof
of impact in such cases does not involve a comparison
with other districts, but only the actual or projected
election result. In Georgia in 2012 and 2014, white Re-
publican incumbents barely beat African-American
Democrats in districts where the minority registered
voter percentage was steadily increasing due to demo-
graphic changes. In 2015, the Legislature responded by
cutting neighborhoods of African-American Demo-
cratic voters out of those districts. See Georgia State
Conf. of the NAACP, 2017 WL 3698494, at *12. A quan-
tification of statewide disproportionality, asymmetry,
or efficiency gap would not instruct on the discrimina-
tory impact of the line-drawing. Rather, the proof of im-
pact would be in the form of past election results
and/or projected future election results, i.e., showing
that elections were tight, that specific groups were tar-
geted for exclusion or inclusion in the district, and that
the line-drawing party continued to win, or could be
projected to win. See Bandemer, 478 US. at 141

36

(plurality opinion) (combining the district configura-
tions “with vote projections to produce future election
results. .. .”).

Again, the Georgia case provides illustrative
proofs. The Reapportionment Office was successful in
achieving its goals. Both Chandler and Strickland won
their subsequent reelection challenges, something the
Reapportionment Office admits would not have hap-
pened but for the changes to the district maps in 2015.
{O’Connor Depo. p. 90}.

Under no circumstances, however, should the bur-
den be placed on plaintiffs pressing claims of partisan
gerrymandering to prove that their candidates have al-
ready lost elections solely because of the challenged
line-drawing. Such a requirement would delay suit un-
til after the gerrymander had governed at least one
election and thus allow legislatures to reap the bene-
fits of their invidious intent. This is particularly so in
the case of pinpoint gerrymanders, where changes may
be implemented with every new legislative election cy-
cle, as they were in a succession of Georgia Legislative
sessions.

D. The Court Should Allow the Contours
of Subsidiary Legal Standards and Evi-
dence Relevant to Gerrymander Cases
to Evolve

Because partisan gerrymander cases come in so
many forms, there is no need for the Court to announce
all subsidiary legal and evidential standards that are

37

applicable to all cases. Indeed, it would be a mistake to
do so. The same evidence that is relevant to a statewide
redistricting on the heels of a census cycle is unlikely
to apply to a mid-decade manipulation of the lines of a
single district. The courts, guided by general legal
standards set forth by this Court, may devise the sub-
sidiary standards on a case-by-case basis, as they
evolve over time, precisely the way other constitutional
jurisprudence has developed.

This is what happened in the cognate area of one
person, one vote cases after Baker v. Carr, 369 U.S. 186
(1962). In Reynolds v. Sims, 377 U.S. 533 (1964), the
Court declined to employ a specific substantive stand-
ard in the course of concluding that Alabama’s appor-
tionment plans violated the Equal Protection Clause,
instead simply declaring that “the deviations from a
strict population basis are too egregious . . . to be con-
stitutionally sustained.” 377 U.S. at 568-69. While
Chief Justice Warren declared in Reynolds that “math-
ematical nicety is not a constitutional requisite” when
adjudicating one person, one vote cases under the
Equal Protection Clause, id. at 569, the Court would
later reverse course and determine that certain nu-
merical thresholds were in fact appropriate. By not de-
fining the limits of the one person, one vote principle
at the outset, Carr and Reynolds gave lower courts lat-
itude to rein in severe malapportionment in the short
term while allowing the Court to develop workable and
easily-communicable legal and evidential standards in
future cases.

38

Particularly in regard to the use of statistical
methods to prove impact — whether in statewide or pin-
point claims — trial courts can exercise their role as
gate-keepers, applying the time-tested standards of
Daubert. Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993).

“a
vv

CONCLUSION

For the foregoing reasons, the Court should hold
that partisan gerrymandering claims are justiciable
and subject to a judicially-manageable standard of in-
vidiousness applicable to the variety of gerrymanders,
including the pinpoint gerrymander enacted by the

Georgia Legislature in 2015.
Respectfully submitted,

KRISTEN CLARKE WILLIAM V. CUSTER
JON GREENBAUM JENNIFER B. DEMPSEY
EZRA D. ROSENBERG BRYAN CAVE LLP

Counsel of Record 1201 W. Peachtree St.
JULIE HOUK Atlanta, GA 30312
JOHN POWERS (404) 572-6600
LAWYERS’ COMMITTEE FOR bill. custer@

CiviL RIGHTS UNDER LAw bryancave.com

1401 New York Ave., NW, Suite 400
Washington, DC 20005

(202) 662-8600
erosenberg@lawyerscommittee.org

Counsel for Amici Curiae the Georgia State Conference
of the NAACP, Lavelle Lemon, Marlon Reid, Celeste
Sims, Patricia Smith, and Coley Tyson

39

BRADFORD M. BERRY

JANETTE M. LOUARD

KHYLA D. CRAINE

THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, INC.

OFFICE OF GENERAL COUNSEL

4805 Mount Hope Drive

Baltimore, MD 21215

(410) 580-5777

bberry@naacpnet.org
Counsel for Amici Curiae the National Association
for the Advancement of Colored People, Inc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0779%3A25. Public record. Not legal advice.