Amicus Curiae Brief — Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1237 (2019) (No. 18-281)

No. 18-281

In The

Supreme Court of the United States

VIRGINIA HOUSE OF DELEGATES, ET AL.,

Appellants,

Vv.

YOLDEN BETHUNE-HILL, ET AL..,

Appellees.

On Appeal from the Unites States District

Court for the Eastern District of Virginia

AMICUS BRIEF FOR LEE CHATFIELD, IN HIS

OFFICIAL CAPACITY AS SPEAKER-ELECT OF

THE MICHIGAN HOUSE OF REPRESENTATIVES,

AARON MILLER, IN HIS OFFICIAL CAPACITY AS

A MEMBER OF THE MICHIGAN HOUSE OF

REPRESENTATIVES, JACK BERGMAN, BILL

HUIZENGA, JOHN MOOLENAAR, FRED UPTON,

TIM WALBERG, PAUL MITCHELL, GEORGE HO!DING,

VIRGINIA FOXX, MARK WALKER, DAVID ROUZER,

RICHARD HUDSON, PATRICK McHENRY, MARK

MEADOWS, AND TED BUDD AS AMICI

CURIAE IN SUPPORT OF APPELLANTS

Jason Torchinsky

Counsel of Record

Dennis W. Polio

HOLTZMAN VOGEL

JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808

(540) 341-8809 (Fax)

jtorchinsky@hvjt.law

LL

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (B00) 847-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............c0ccccsseseeseeseeeennenens ii

STATEMENT OF INTEREST OF AMICI

Cee ovescusececsvscccvcuvenntouteseccotsessseesesnncsesooneneensccecoseces 1

I 3

|. INTERVENING LEGISLATORS

HAVE STANDING TO APPEAL

REDISTRICTING CASEG............ccc0ccceseeeeneeevennnes 5

a. Redistricting Challenges Involve

Unique Concerns Sufficient to Confer

Article I] Standing on Lagislators................. 7

b. Intervening Legislators Have Article

Ill Interests Which are Certain to be

Impaired by Redistricting Challenges.......... 12

c. Permitting Intervening Legislators to

Appeal Redistricting Challenges is

Necessary to the Adversarial System

I ctictinietiitnrirmneietnicrenicctecmcwicen 14

FREDO cecnvcecsccueinvevenvesesenenneenscnrnnsenvnsensnasesente 18

u

TABLE OF AUTHORITIES

Agre v. Wolf, No. 17-cv-04392

(E.D. Pa, filed Oct. 2, 2017)...

Baldus v. Members of the Wis. Gov't

lity Bd.

Accountability Bd.,

849 F. Supp. 2d 840 (B.D. Wis. 2012).........

Barlow v. Collins,

ke seopceee

Bay Cty. Democratic Party v. Land,

347 F. Supp. 2d 404 (E.D. Mich. 2004) .....

Daggett v. Kimmelman,

535 F. Supp. 978 (D.N.J. 1982)...

Democratic Party of the U.S. v. National

Conservative Political Action Comm., 578

F. Supp. 797 (E.D. Pa. 1983) ............00......

Democratic Party v. Benkiser,

459 F.3d 582 (Gth Cir. 2006) oo.

Diamond v, Charles,

a ED cxsesensectinecenacsenespazicinnseeese

Diaz v. Silver,

978 F. Supp. 96 (B.D.N.Y. 1997).................

Fed. Election Comm'n v. Nat'l Conservative

Political Action Comm.,

II iinrccnsntnnicennenanateneneseceeiantens 13

Gill v. Whitford,

ee ll

Hastert v. 1. State Bd. of Election Comm'rs,

28 F.3d 1430 (7th Cir. 1993) ...............cc0: 7

Hastert v. State Bd. of Elections,

777 F. Supp. 634 (N.D. TL. 1991) .................. 7

Hollingsworth v. Perry,

I ceili 9

INS v, Chadha,

I ricer 10, 11

Johnson v. Mortham,

915 F. Supp. 1529 (N.D. Fla. 1995).................... 7

Karcher v. May,

I a conelemeelienneenbtll 9, 11

King v. 1. State Bd. of Election,

410 F.3d 404 (7th Cir. 2005) ...........666.6006 x

King v. State Bd, of Elections,

979 F. Supp. 582 (N.D. Ill. 1996) ...................... 7

League of Women Voters of Mich. v. Johnson,

902 F.3d 572 (6th Cir. 2018) ..............06 2,7

iv

League of Women Voters of Mich. v. Johnson,

2018 U.S. App. LEXIS 36083 (6th Cir.

Gi SIT instar erin ertirictinomenamtantiebeceaunsteneces 2

League of Women Voters of Mich. v. Johnson,

No, 2:17-cv-14148 (E.D. Mich. filed Dec.

ee passim

Lujan v. Defenders of Wildlife,

i ensbaniannie 6

Meese v. Keene,

I ee 12

Comm'n,

230 F. Supp. 2d 998 (D. Ariz. 2002)................... 7

Owen v. Mulligan,

640 F.2d 1130 (8th Cir. 1981) ©... 18

Page v. Bartels,

248 F.3d 175 (Srd Cir. 2OOL) .........cccccccccceceescenees 7

Perez v. Abbott,

274 F. Supp. 3d 624 (W.D. Tex. 2017) ............... 7

Perez v. Abbott,

SA-11-CV-360 (W.D. Tex. Aug. 30, 2018).......... 9

Reynolds v. Sims,

gg EE 3,8

Rucho v. Common Cause,

No. 17-1295 (U.S. filed Jan 12, 2018)................ 2

Schulz v. Williams,

44 F.3d 48 (Bd Cir, 1904)..........cccccccceseceseccecesees 13

Sixty-Seventh Minn. State Senate v. Beens, 406

| EEE ES ae es 9

Smith v. Boyle,

144 F.3d 1060 (7th Cir. 1998) ................ 13

Terrazas v. Ramirez,

829 S.W.2d 712 (Tex. 1991).......ccccccccccccceccccccees 13

Town of Chester v. Laroe Estates, Inc.,

4 eer. 6

Upham v. Seamon,

SE Raa 8

Wittman v. Personhuballah,

Ee 10, 18

CONSTITUTIONS AND STATUTES

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See, TEU, MAIO SI crnconcccnssstasoensnetnconsssensseetscet 2

STATEMENT OF INTEREST OF

AMICI CURIAE'

Representative Lee Chatfield, in his official

capacity as Speaker-Elect of the Michigan House of

Representatives, and Representative Aaron Miller,

in his official capacity as a member of the Michigan

House of Representatives, each a Member of the

Michigan Lagislature, Members of Congress

representing Michigan including Jack Bergman, Bill

Huizenga, John Moolenaar, Fred Upton, Tim

Walberg, and Paul Mitchell, and Members of

Congress representing North Carolina including

George Holding, Virginia Foxx, Mark Walker, David

Rouzer, Richard Hudson, Patrick McHenry, Mark

Meadows, and Ted Budd (collectively “Amici

Curiae”) submit this Amicus Brief in support of

Appellants.”

The Amici Curiae have a vital interest in the

law of redistricting. Michigan’s House of

Representatives is one of two legislative bodies

' No counsel for a party authored this brief in whole

or in part, and no counsel or party made a monetary

contribution intended to fund the preparation or

submission of this brief. No person other than Amici

Curiae made a monetary contribution to its

preparation or submission.

* On December 26, 2018 the Virginia House of

Delegates submitted a general consent to the filing

of amicus briefs before the Court. On January 2,

2018, both State Defendants and Plaintiffs

consented to the filing of this amicus brief.

bestowed with the constitutional obligation to

prepare and enact legislation “to regulate the time,

place and manner” of elections. Mich. Const. art. I, §

4; see also Mich. Const. art. TV, § 1 (vesting the

general legislative power with the Legislature);

Mich. Comp. Laws § 4.261 (setting out the authority

and procedure for conducting reapportionment); U.S.

Const. art. |, § 4 (granting the legislatures of the

states the power to regulate congressional elections

unless Congress choses to act). As ranking members

of the Michigan Legislature, Amici Representatives

would be required to play an integral part in

drawing and enacting remedial plans requisite to

comply with an order from a court as the result of

redistricting litigation. The Michigan Members of

Congress and Michigan representatives filing here

are Defendant-Intervenors in League of Women

Voters of Mich. v. Johnson, No. 2:17-cv-14148 (B.D.

Mich. filed Dec. 22, 2017), a federal alleging

partisan gerrymandering claims against Michigan's

state legislative and congressional maps, which is

set for trial in February. Amici Curiae’s intervention

in League of Women Voters of Mich. v. Johnson was

granted by the United States Court of Appeals for

the Sixth Circuit. League of Women Voters of Mich.

v. Johnson, 2018 U.S. App. LEXIS 36083 (6th Cir.

Dec. 20, 2018); League of Women Voters of Mich. v.

Johnson, 902 F.3d 572 (6th Cir. 2018). The Members

of Congress from North Carolina are representatives

of districts subject to a challenge currently pending

before this court in Rucho v. Common Cause, No. 17-

1295 (U.S. filed Jan 12, 2018), but are not defendant.

intervenors in that case, although they could have

elected to intervene in that case.

Apportionment “is primarily a matter for

legislative consideration and determination and .. .

judicial relief becomes appropriate only when a

legislature fails to reapportion ... .” Reynolds v.

Sims, 377 U.S. 533, 586 (1964). Therefore, the

Michigan Legislature, led in part by Speaker-Elect

Lee Chatfield and made up in part by

Representative Aaron Miller, would be directly

impacted by an order of any court requiring a

modification or redrawing of Michigan's

apportionment plans. Even more, Amici Curiae are

currently Defendant-Intervenors in a challenge to

Michigan’s apportionment plans. See League of

Women Voters of Mich., No. 2:17-cv-14148.

In this way, Amici Curiae are similarly

situated to Appellant Virginia House of Delegates

(Virginia House of Delegates” or “House of

Delegates”) who themselves were Defendant-

Intervenors in the court below. Accordingly, any

ruling by the Court in this case—particularly

regarding standing—has obvious and widespread

implications for the Amici Curiae in their current

litigation, in any future appeals of the current

litigation, and in future redistricting cases.

ARGUMENT

On November 13, 2018 the Court announced

that it postponed jurisdiction in this matter and,

inter alia, directed the parties to fully brief the

question of whether the Virginia House of Delegates

has standing to bring this appeal. While the parties

have addressed this issue in their briefs regarding

the Application for a Stay Pending Appeal,

Responses, and Reply, Amici Curiae write separately

to emphasize the important reasons the Virginia

House of Delegates, and intervenors similarly

situated to them in other redistricting cases, has

standing to appeal.

Plaintiffs-Appellees (hereinafter “Plaintiffs”)

in this case initiated this action against the Virginia

State Board of Elections, the Virginia Department of

Elections, and various election officers (hereinafter

“State Defendants”) challenging 12 majority-

minority state house districts in Virginia as

unconstitutional racial gerrymanders. JS.App. 6.°

This occurred after Governor McDonnell, a

Republican, was not eligible to run for re-election

due to term limits, and Governor McAuliffe, a

Democrat, won the election for governor. The

Virginia House of Delegates, which is majority

Republican, and its Speaker, also a Republican,

intervened without objection, in order to “takeover

the defense of the constitutionality of the House’s

districts and their role in enacting them”.

Emergency Application For Stay at 7. The district

court granted the Virginia House of Delegates’

intervention as of right pursuant to Rule 24(a)(2).

Eventually, the district court determined that

some of the house districts were unconstitutional

and directed the General Assembly to pass a

remedial map before October 30, 2018. JS.App. 202-

03. If the General Assembly did not pass a remedial

map before then, a court-run remedial proceeding

would follow. Id. Governor Northam, a Democrat,

then announced that he would not sign any new

3 “JS.App.” refers to the appendix to the

jurisdictional statement in this case. See No. 18-281.

districting plan passed by the General Assembly.

ECF No. 275, Ex. 1. This resulted in a legislative

deadlock under Virginia’s redistricting process.

Accordingly, the district court has begun its remedial!

map-drawing proceedings.

In the meantime, the Virginia House of

Delegates appealed the district court’s decision to

this Court. The State Defendants, led by a

Democratic administration (the political party

opposite of that in control of the House of Delegates),

now oppose the House of Delegates’ involvement in

the case, claiming it does not have standing to

appeal. Specifically, the State Defendants argue that

the State’s Attorney General is the exclusive agent

to defend the state and there is no other state law

that provides such power to the House of Delegates.

However, State Defendants fail to acknowledge, or

perhaps purposefully ignore, the fact that this case

falls into a special subset of cases that uniquely

impacts legislatures and legislators—challenges to

‘ietrictine.

Because the Virginia House of Delegates

properly intervened in the case and because their

involvement, and the involvement of legislatures

similarly situated to them in other cases, is

invaluable and indeed necessary to redistricting

litigation, they have standing to bring this appeal.

Il. INTERVENING LEGISLATORS

HAVE STANDING TO APPEAL

REDISTRICTING CASES

Legislators that intervene to defend

redistricting challenges have standing to appeal in

6

those cases because redistricting challenges are

different than challenges to ordinary legislation.

Article Ill, standing is necessary for any

federal case, even those involving appeals by the

original defendants. Diamond v. Charles, 476 U.S.

54, 56 (1986). “To qualify as a party with standing to

litigate, a person must show, first and foremcst, ‘an

invasion of a legally protected interest’ that is

‘concrete and oparticularized’ and ‘actual or

imminent.” Arizonans for Official English v.

Arizona, 520 U.S. 43, 64 (1997) (quoting Lujan v.

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

(internal citations and quotation marks omitted).

“[Ajn intervenor of right must have Article II!

standing in order to pursue relief that is different

from that which is sought by a party with standing.”

Town of Chester v. Laroe Estates, Inc., 137 S. Ct.

1645, 1651 (2017).

Legislatures that intervene to defend

redistricting plans have standing to appeal even in

the absence of the original defendants. This is

because (1) redistricting involves concerns that are

unique to legislatures and legislators; (2) legislators

distinctly possess sufficient Article III interests

when their districts are at issue; and (5) permitting

intervening legislators to appeal _ redistricting

challenges is necessary to the adversarial system

and administration of justice. There can hardly be

more actual or imminent harms to legally protected

interests than those of legislatures defending their

own constitutionally mandated actions or legislators

defending their own districts.

In addition, the Courts of Appeals and the

three-judge district courts that have been presented

with Congressional redistricting cases usually grant

Members of Congress intervention. See, e.g., League

of Women Voters of Mich. v. Johnson, 902 F.3d 572

(6th Cir. 2018); Perez v. Abbott, 274 F. Supp. 3d 624,

687 (W.D. Tex. 2017) (as plaintiff-intervenor);

Baldus v. Members of the Wis. Gov't Accountability

Bd., 849 F. Supp. 2d 840, 847 (E.D. Wis. 2012); Diaz

v. Silver, 978 F. Supp. 96, 98 (E.D.N.Y. 1997); King

v. State Bd. of Elections, 979 F. Supp. 582 (N.D. Ill.

1996); Johnson v. Mortham, 915 F. Supp. 1529 (N.D.

Fla. 1995); Hastert v. State Bd. of Elections, 777 F.

Supp. 634, 639 (N.D. Ill 1991) (as plaintiffs-

intervenors); Daggett v. Kimmelman, 535 F. Supp.

978 (D.N.J. 1982).

a. Redistricting Challenges Involve

Unique Concerns Sufficient to

Confer Article III Standing on

Legislators.

Redistricting and challenges thereto involve

unique concerns that clearly distinguishes

redistricting legislation from other legislation. See,

e.g., Hastert v. Ill. State Bd. of Election Comm'rs, 28

F.3d 1430, 1444 (7th Cir. 1993) (“recogniz[ing] the

perhaps peculiar circumstances of redistricting cases

generally.”); Navajo Nation v. Arizona Redistricting

Comm'n, 230 F. Supp. 2d 998, 1007 (D. Ariz. 2002)

(recognizing the “unique political processes that

come into play in [redistricting] cases.”); Page v.

Bartels, 248 F.3d 175, 190 (3rd Cir. 2001) (“[T]he

legislative history of the 1976 revisions to 28 U.S.C.

§ 2284 clearly demonstrates that Congress was

concerned less with the source of the law on which

an apportionment challenge was based than on the

unique importance of apportionment cases

generally.”) (emphasis added); King v. /ll. State Bd.

of Election, 410 F.3d 404 (7th Cir. 2005) (attorneys

fees and costs awarded to defendant-intervenors

because “redistricting cases often present ‘peculiar

circumstances”) (internal citation omitted).

Unlike challenges to more traditional laws,

challenges of redistricting involve legislative conduct

that is mandated by either the state constitution or

the federal constitution. In other words, redistricting

legislation is not optional or elective legislation. If a

court strikes down legislation setting legislative

boundaries, the legislation must be replaced by the

applicable state process or by the court that struck

down the boundaries.

Specifically, for the purposes of the present

appeal, the Constitution of Virginia mandates the

General Assembly reapportion its own districts every

ten years. Va. Const. art. II, § 6. Similarly, in the

cases where state legislators or Members of

Congress intervene to defend congressional

redistricting, the Elections Clause of the United

States Constitution states that “[t]he times, places

and manner of holding elections . . . shall be

prescribed in each state by the legislature thereof .. .

.” (emphasis added) U.S. Const. art. I, § 4. This

mandate is one of the fundamental and

indispensable principles of federalism.

For the purposes of redistricting litigation,

these constitutional provisions mean that in addition

to having the obligation to pass a new map in the

first instance, the legislature will be (and should be)

tasked with passing a remedial map. See, e.z.,

Upham v. Seamon, 456 U.S. 37 (1982); Reynolds, 377

U.S. at 586 (Apportionment “is primarily a matter

for legislative consideration and determination and .

9

. . judicial relief becomes appropriate only when a

legislature fails to reapportion .. . . ). Thus, “before

ja] Court undertakes the “unwelcome obligation” of

fashioning a remedial plan, the Court must afford

the Legislature an opportunity to reapportion .. .”

Perez v. Abbott, SA-11-CV-360, order, (W.D. Tex.

Aug. 30, 2018). The redistricting context is the only

one in which legislatures have such a responsibility

to remedy. And the Court has recognized remedial

responsibility previously. See Sixty-Seventh Minn.

State Senate v. Beens, 406 U.S. 187, 194 (1972)

(recognizing intervention is appropriate for the

Minnesota State Senate because that body would be

directly impacted by the district court’s orders).

Legislators clearly thus have a sufficient interest in

the subject matter of this litigation that is materially

distinguishable from the generalized interest shared

by all citizens. See, e.g., id. (recognizing that state

legislators have the right to intervene because the

state legislature would be directly affected by a

district court’s orders.).

Legislators’ remedial responsibility in

redistricting cases accordingly make them necessary

participants in any remedies stemming therefrom.

Given this necessary role of legislators in

redistricting litigation, it follows that they have

standing to appeal from a decision requiring them to

undertake such a_ responsibility. This is very

different from challenges of laws such as abortion

laws, Diamond, 476 U.S. 54 (1986), laws mandating

a moment of silence in schools, Karcher v. May, 484

U.S. 72 (1987), ballot initiatives banning gay

marriage, Hollingsworth v. Perry, 570 U.S. 693

(2013), laws making English the official language,

Arizonans for Official English, 520 U.S. 43, et seq., in

that the legislatures are tasked with reapportioning

after an adverse decision. Unlike these other types of

cases, replacement maps are required by the United

States Constitution. And the circumstances of this

case are even distinct from cases in which

congressmen have intervened to defend their own

districts where none were willing to run in new

districts because it is the legislators themselves who

are defending the very districts that they drew and

will have the responsibility to redraw upon an

unfavorable opinion in the district court. C/,

Wittman v. Personhubaliah, 136 S. Ct. 1732 (2016).

This is both an opportunity and an “unwelcome

obligation” as fulfilling their constitutional mandate

takes incredible resources and time to accomplish.

In this manner, the legislatures are akin to

the Immigration and Naturalization Service in /NS

v. Chadha, 462 U.S. 919 (1983). State legislatures

essentially administer the redistricting process, as

mandated by U.S. Const. art. |, § 4 and their

respective state constitutions. In JNS v. Chadha,

this Court held that:

[wlhen an agency of the United States

is a party to a case in which the Act of

Congress it administers is held

unconstitutional, it is an aggrieved

party for purposes of taking an appeal .

... The agency's status as an aggrieved

party .. . is not altered by the fact that

the Executive may agree with the

holding that the statute in question is

unconstitutional.

462 U.S. 919, 931. See also Karcher, 484 U.S. at 84

(White, J., concurring) (we have now acknowledged

that the New Jersey Legislature and its authorized

representative have the authority to defend the

constitutionality of a statute attacked in federal

court.”). Parallel reasoning holds true _ for

legislatures, legislators, and Congressmen _ in

redistricting challenges. There is no other state

body, not even the executive, that administers as

much control over the redistricting process as the

legislature and its component legislators, absent a

delegation of authority to some state agency or

commission. See also Emergency Application for

Stay at 14.

Accordingly, reapportionment involves unique

issues and concerns, which result in intervening

legislators’ and Members of Congress’ standing to

appeal in these narrow types of cases.‘

‘ Another example of the uniqueness of redistricting

litigation is the requirement that plaintiffs must, at

a minimum, be made up of individuals from each

challenged district. Gill v. Whitford, 138 S. Ct. 1916

(2018). Accordingly, under the Court's precedents,

only a handful of plaintiffs and a federal court can

overturn the will of millions of voters acting through

their elected representatives. This is a power given

in no other type of litigation—even class action

plaintiffs have far less power in the federal courts.

12

b. Intervening Legislators Have

Article III Interests Which are

Certain to be Impaired by

Redistricting Challenges.

Aside from the unique legislative concerns

discussed supra, redistricting litigation implicates

intervening legislators’ interests sufficient to confer

Article II] standing. These interests include: (1) the

economic harm to legislators and their successors

that is caused by increasing costs of election and

reelection; (2) the reduction in legislators’ or their

successors’ reelection chances that may result from

any redrawing of apportionment plans; and (3)

legislators will be forced to expend significant public

funds and resources to fulfill the remedial orders

sought by Plaintiffs.

Legislative intervenors in redistricting cases

have distinct economic interests in the litigation. An

economic interest is the quintessential injury in fact

under Article Ill. Barlow v. Collins, 397 U.S. 159,

163-64, 172, n.5 (1970) (Brennan, J., dissenting). See

also Democratic Party v. Benkiser, 459 F.3d 582, 586-

88 (Sth Cir. 2006) (an injury in fact exists when

“campaign coffers” are “threatened”). If the electoral

maps are changed, legislators or their successors will

necessarily need to expend additional funds to adapt

and engage with new constituents within new

boundaries. The likelihood of legislators’ or their

successors’ “campaign coffers” being threatened is a

sufficient interest to warrant Article III standing.

Legislative intervenors in_ redistricting

challenges also have an interest in their reelection

chances. This type of interest has been long noted in

the context of Article II] standing. See Meese v.

13

Keene, 481 U.S. 465, 475 (1987); Bay Cty. Democratic

Party v. Land, 347 F. Supp. 2d 404, 423 (E.D. Mich.

2004) (diminishment of political power is sufficient

for the purposes of standing); Smith v. Boyle, 144

F.3d 1060, 1061-63 (7th Cir. 1998); Schulz ov.

Williams, 44 F.3d 48, 53 (2d Cir. 1994) (Conservative

Party official had standing to challenge the ballot

position of an opponent); Owen v. Mulligan, 640 F.2d

1130, 1132-33 (@th Cir. 1981) (holding that the

“potential loss of an election” is an injury in fact);

Democratic Party of the U.S. v. National

Conservative Political Action Comm., 578 F. Supp.

797, 810 (B.D. Pa. 1983) (three-judge panel), affd in

part and rev'd in part on other grounds sub nom.

Fed. Election Comm'n v. Nat'l Conservative Political

Action Comm., 470 U.S. 480, 489-90 (1985). C/.

Wittman v. Personhubaliah, 136 S. Ct. 1732

(evidence of impairment of reelection prospects can

constitute an Article III injury for standing

purposes).

Should a court order any remedy sought by

plaintiffs in a redistricting challenge, as discussed

supra, legislators would be required to, in their

official capacities, expend significant legislative

funds and resources towards the extraordinary costs

of developing apportionment plans and adding

unscheduled session days to the legislative calendar.

See Terrazas v. Ramirez, 829 S.W.2d 712, 727 (Tex.

1991) (Gonzalez, J. & Cornyn, J., concurring) (noting

the added expense of special legislative sessions).

Expenses involved with redistricting include, but are

not limited to, acquiring the software and databases

necessary to process and map statewide data,

engaging numerous’ skilled personnel and

14

consultants, holding several fully staffed public

hearings, and related opportunity costs.

Even if such a remedy occurred during regular

sessions of the legislature, the time and attention of

legislative branch staff normally assigned to handle

other matters would have to be reassigned to handle

what is otherwise typically a decennial matter.

c. Permitting Intervening Legislators

to Appeal Redistricting Challenges

is Necessary to the Adversarial

System and Public Policy.

Section 2 jurisprudence and redistricting

challenges generally have been undergoing a rapid

and dynamic evolution in recent years. In such

circumstances, it is incredibly important to provide

courts with robust legal arguments and policy

insights. The best way, indeed the only way, to

ensure such robustness of debate and soundness of

jurisprudence is to also ensure truly adversarial

representation before the courts. Blocking the ability

of the only sincerely adverse parties in many

redistricting cases, the state legislatures and

Members of Congress, to appeal judgements that are

unfavorable to their interests and contrary to law,

serves no policy benefit other than to reward wily

litigation strategy.

After the House of Delegates intervened, and

assumed the defense in the district court, a prior

appeal to this court, and again the district court on

remand, the Democratic-led State Defendants now

argue that the Republican-led House of Delegates

lacks standing to appeal. In this particular case,

whether through pure happenstance or, more

15

believably, through Plaintiffs’ litigation strategy,

Plaintiffs sat on their hands and brought suit

challenging these maps several years after they were

adopted, and only after a Democratic administration

sympathetic to their claims took office. See

Emergency Application for State 6.

Unfortunately, such ambush tactics are

becoming common strategy in redistricting litigation,

where plaintiffs strategically bring suit against

sympathetic state administrations, or where

administrations sympathetic to plaintiffs’ suit take

control after the suit is underway. These

sympathetic administrations then lie in wait in order

to prejudice intervening defendants and obtain an

advantage for plaintiffs. This appears to be a new

tactic in redistricting litigation that this court should

not countenance. For example, in Michigan,

challenges were brought against Michigan’s 2011

legislative and Congressional maps in federal court

in December of 2017, when it appeared quite

possible that executive branch control would shift

from Republican to Democrat in 2018. See League of

Women Voters of Mich. v. Johnson, No. 2:17-cv-

14148, (E.D. Mich. filed Dec. 22, 2017). In

Pennsylvania, a federal court challenge was brought

in 2017 challenging a 2011 Republican drawn map

and naming only the Commonwealth's Democratic

Governor and Attorney General as defendants. See

e.g. Agre v. Wolf, No. 17-cv-04392 (E.D. Pa. filed Oct.

2, 2017). Additionally, plaintiffs in redistricting

cases are now following similar tactic in states with

elected state Supreme Courts. For example, in

Pennsylvania, plaintiffs challenged the 2011

Congressional maps on state law grounds in 2017

after control of the Pennsylvania Supreme Court

16

changed from Republican to Democrat, which

resulted in the state’s Supreme Court redrawing the

Congressional district map itself. Similarly, a

recently filed state court case was filed shortly after

the 2018 elections, when Plaintiffs were able to

observe that a vocal opponent of “partisan

gerrymandering” was elected to the North Carolina

Supreme Court.

This same patter has played out before courts

hearing these cases. See generally, e.g., Transcript of

Trial Day 3: Afternoon, Agre, No. 17-cv-04392 at

39:15-23 (“co-defendant” Pennsylvania Democratic

Governor taking no substantive actions on the trial

record until closing argument where he vociferously

sided with plaintiffs in arguing that the map was a

partisan gerrymander); id. at 55:12-16 (In rebuttal “I

thought they were on our side of the V. That was

quite a speech by the Governor's counsel, who

basically just utterly abandoned the state’s duly

enacted law ... .”); see also generally League of

Women Voters of Mich., No. 2:17-cv-14148 (in midst

of litigation, a Democrat was elected Michigan

Secretary of State while Republican predecessor was

defending a redistricting plan alleged to discriminate

against Democrats). See also id. Order Denying

Renewed Mot. Intervene (ECF No. 144-1) (Quist, J.,

dissenting) (“[The political landscape completely

changed with the November 6 election .. . . it is

difficult to imagine that the new Democrat Secretary

will continue to defend a Republican-adopted

redistricting plan that is alleged to discriminate

against Democrats and the Democratic Party.”).

The political affiliation of parties and

intervenors matter immensely in redistricting cases.

It is becoming clear that many litigants are using

17

such litigation to achieve “end-runs” around the

states’ proper political processes. Through such

litigation against sympathetic executives, litigants

achieve’ redistricting on their terms, and

sympathetic executives avoid the political

consequences of vetoing redistricting bills.

Prohibiting legislatures and legislators, especially

those affiliated with a different political party than

their executives, from fully participating in these

kinds of cases—including appeals—unquestionably

hamstrings the legal and legislative processes. Of

course, this is not to say that there is some

requirement that representatives from all political

parties must be parties to redistricting litigation, but

rather that if legislators, who duly enacted the

challenged maps, properly intervene to defend those

maps and must redraw them under adverse rulings,

then they must have standing to further defend

those maps on appeal.

Due to the particular character of redistricting

challenges, the rapidly evolving jurisprudence, and

the positions of the parties, no party, no court, and

no citizen will benefit from a scenario in which state

defendants surprise the parties to redistricting

litigation with an eleventh hour change in position.

Recognizing intervening legislatures’ standing to

appeal adverse’ redistricting decisions in

redistricting cases is essential to the adversarial

process with a full and robust trial on the issues

from all sides. Ignoring political reality and hoping

defendant state executives act in a way that is

manifestly antithetical to their political parties’

interests benefits no one.

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CONCLUSION

For the foregoing reasons, Amici Curiae

respectfully request that the Court hold that the

Virginia House of Delegates has standing to appeal.

Respectfully submitted this 4th Day of January,

2019.

HOLTZMAN VOGEL

JOSEFIAK TORCHINSKY PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808