Amicus Curiae Brief — Rucho v. Common Cause, 139 S. Ct. 1316 (2019) (No. 18-422)

No. 18-422

IN THE

Supreme Court of the United States

a

ROBERT RUCHO, ET AL.,

Appellants,

-——V.-—-

COMMON CAUSE, ET AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRIEF OF COLLEAGUES OF

PROFESSOR NORMAN DORSEN

AS AMICI CURIAE IN SUPPORT OF APPELLEES

BURT NEUBORNE

Counsel of Record

40 Washington Square South

New York, New York 10012

(212) 998-6172

burt.neuborne@nyu.edu

Attorney for Amici Curiae

Colleagues of Professor

Norman Dorsen

i

QUESTION PRESENTED

Whether an extreme partisan gerrymander that

intentionally pre-selects the overwhelmingly likely

winner in each of North Carolina’s 13 Congressional!

Districts violates the First Amendment by:

1. discriminating of the basis of viewpoint;

2. imposing depressed levels of campaign fund-

ing, speech, and electoral activity typically

associated with non-competitive elections; and

3. denying voters of all political stripes the ability

to exercise a meaningful personal choice over

who is to represent them in the legislature?

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ................. i

TABLE OF AUTHORITIES ................ iv

INTEREST OF AMICI .... 1.0.2.0 cece eneees l

SUMMARY OF ARGUMENT .............. 2

ARGUMENT—

THE FIRST AMENDMENT BARS THE

NORTH CAROLINA LEGISLATURE

(1) DISCRIMINATING ON THE BASIS OF

VIEWPOINT IN DRAWING VIRTUALLY

UNCONTESTABLE DISTRICT LINES

CONCEDEDLY DESIGNED TO FAVOR

A SINGLE POLITICAL PARTY;

(2) LOCKING AS MANY VOTERS AS

POSSIBLE INTO VIRTUALLY UNCON.

TESTABLE ELECTION DISTRICTS

CHARACTERIZED BY DEPRESSED AND

UNEQUAL LEVELS OF CAMPAIGN

SPENDING, DIMINISHED LEVELS OF

POLITICAL SPEECH AND ASSOCIATION,

AND DISAPPOINTING LEVELS OF

VOTER PARTICIPATION; AND

(3) DENYING NORTH CAROLINA

VOTERS A MEANINGFUL PERSONAL,

CHOICE CONCERNING WHO WILL

REPRESENT THEM IN CONGRESS

Introduction and Factual Summary........ 7

ii

PAGE

1. The Legal Background of

Challenges to Excessive

Partisan Gerrymandering ........... 13

2. Extreme Partisan Gerrymandering

Violates the First Amendment

Bewality Primeiphe ......cccccccsccces 18

3. Extreme Partisan Gerrymandering

Inevitably Degrades the Quantity

and Quality of Intensely Protected

ss Joc eccencecsseses 22

4. Extreme Partisan Gerrymandering

Unconstitutionally Degrades a Voter's

First Amendment Right to Play a

Significant Role in Choosing the

Agent Who Will Speak for the Voter

BP He IE c vccwccascccusccecs 28

EY eucdscnctenceccusnacccaeceds 33

Appendix Describing Amici Curiae ........ la

iv

TABLE OF AUTHORITIES

PAGE(S)

Cases

Anderson v. Celebrezze,

RE 6, 31

Arizona Free Enterprise Club v. Bennett,

ee Ce PEE EEE ho cccsccvssdeveere passim

Arkansas Writers’ Project v. Ragland,

ee i ee ek novo 20

Baker v. Carr

PE, 5 cnc cnecaccebcoces 17, 19

Benisek v. Lamone,

Se ET ED, . nv vcccccceccccees 15, 16

Board of Estimate v. Morris,

ee es I Ic ob vo cccccceccccccnce 18

Buckley v. Valeo,

I i sseene passim

Burdick v. Takushi,

ER 3, 29, 30

California Democratic Party v. Jones,

ee ey OE I, vivo ccccceccoccevcves 18

Carey v. Brown,

ee ee Ns clive ceccescccevecs 19

Citizens United v. FEC,

ee ec eeocoes passim

Common Cause v. Rucho,

318 F. Supp.3d 777

ne 17, 18

Davis v. Bandemer,

ey eo cc coueans

Davis v. Federal Election Commission,

ee Ss Pn cccoccccocvescce

Dunn v. Blumstein,

ee

Gaffney v. Cummings,

ee PIN, oc cvcceccscstace

Gill v. Whitford,

138 S. Ct. 1916 (2018) ..............

Harper v. Virginia Bd of Elections,

383 U.S. 663 (1966).................

Kramer v. Union School District,

SOG UB. GB CIGBR)... ccccccccccces

Kusper v. Pontikes,

Se IN aces ci nveseseese

PAGE(S)

... 3, 5, 22

seus 31

Lamb’s Chapel v. Center Moriches Union

Free School District,

ee See I CDs vcccccccccccsces

Lamone v. Benisek,

eS sebepens

LULAC ov. Perry,

es IED, wc ccocecccsveces

McCutcheon v. FEC,

Ss MINED vcccccecesvecses

Miami Herald v. Tornillo,

ee EE, ccucchssccecvecs

vi

PAGE(S)

Minneapolis Star & Tribune v. Minnesota

Comm 'r of Revenue,

ee Ey so vcvcecovceeess esses 19

O’Brien v. United States,

Se Se ck cnccctesvecbdecstees 32

Police Dep't of Chicago v. Mosley,

ee ys Us icc cdvrtesceasdéevsbac 5, 19

RAV v. City of St. Paul,

ee Cs ss 00 vue 0s dastunecsees 20

Reynolds v. Sims,

er ee I, ccc pinccckepsuacaune 17

Rosenberger v. University of Virginia,

SEP Wes Oe GRD cv cccccccccsve 3, 19, 20, 21

Terry v. Adams,

8 ee eee passim

Texas v. Johnson,

ee Ce Be ls xc vccdccevevacessses 32

Vieth v Jubelirer,

ee CE EEE oc vevcenucsvuewenan passim

Virginia v. Black,

fe GS | ee 20

Wesberry v. Sanders,

gk a re 3, 30

Whitney v. California,

ee Ce ee Es ip occcccccevcecnsens 29

Widmar v. Vincent,

ee es CE » cko vb cderckeakeunee 19

PAGE(S)

Williams v. Rhodes,

ee 6, 31

Statutes

Voting Rights Act of 1965, § 2.................... 15

Constitutional Provisions

ee IIS cicecccccccccscecees passim

The Fourteenth Amendment.............. passim

The United States Constitution,

EET ee 6

Other Authorities

Vincent Blasi, The First Amendment and

the Idea of Civic Courage: The Brandeis

Opinion in Whitney v. California,

29 Wm & Mary L. Rev. 653 (1988) ...... 29

Donald A. Debats, How America Voted: By

Voice, and How the Other Half Voted:

The Party Ticket States, available at

sociallogic.iath. virginia.edu

(University of Virginia)................. 32

Heather K. Evans, Competitive Elections and

Democracy in America: The Good, the

Bad, and the Ugly (2014) ............... 10

L. E. Fredman. The Australian Ballot:

The Story of an American Reform

(Michigan State University Press,

ir ee eee se ceeseeces 32

PAGE(S)

Elmer C. Griffith, The Rise and Development

of the Gerrymander (1907) .............. 11

Gary C. Jacobson, The Electoral Origins of

Divided Government: Competition in

U.S. House Elections, 1946-1988........ 10

Kenneth Karst, Equality as a Central

Principle of the First Amendment,

43 U. Chi. L. Rev. 20 (1975) ............ 5

Keena Lipsitz, Competitive Elections and

the American Voter

RN Ee re eee 10

David R. Mayhew, Congressional Elections:

The Case of the Vanishing Marginals,

6 Polity 295, 304 (1974)................. 10

Vann Newkirk II, How Redistricting Became

a Technological Arms Race, The Atlantic

(Oct. 28, 2017), available at https://www.

theatlantic.com/politics/archive/2017/10/

gerr-ymandering-technology -redmap-

EE ie ee lbuuedeathesess « 11

Bertrall Ross, Partisan Gerrymandering,

the First Amendment, and the Political

Outsider, 118 Colum. L. Rev. 2187

cacdnteduunavednosscsateddéhsessooys 27

http://cookpolitical.com/introducing -2017-

cook -political-report-partisan-voter-

DET SuGskedbbebnvedshedds dhnebeonneds<s 10

https://www.politico.com/20 1 4-election/

results/map/house/north-carolina/

FF Bapteance eis ie 8

ix

PAGE(S)

https://www.politico.com/20 16-election/

results/map/house/north-carolina/ ...... 8

https://www.politico.com/election-

results/2018/north-carolina/ ............ 8

https://www.reuters.com/article/us-usa-

shutdown-mcconnell/senate-will-not-

consider-house-democratic-bills-to-end-

shutdown-republican-mcconnell-

rn in diuguchencteces 25

https://www.wral.com/north-carolina-election-

results/17944806/?group=judges ........ 9

1

INTEREST OF AMICI

Amici, more fully described in an Appendix

following this brief, were colleagues of Professor

Norman Dorsen, who died peacefully on July 1,

2017.' Professor Dorsen devoted his career to the

teaching, study and passionate defense of the

United States Constitution. His academic career

at NYU School of Law spanned fifty-six years,

from 1961-2017, culminating as Frederick I. and

Grace A. Stokes Professor of Constitutional Law,

Co-Director of the Arthur Garfield Hays Civil

Liberties Program, and Counsellor to the

President of New York University. Professor

Dorsen’s tireless defense of the United States

Constitution included distinguished service from

1969-1991 as General Counsel and then President

of the American Civil Liberties Union (ACLU).

In the months preceding his death, Professor

Dorsen was engaged in preparing material for

submission to this Court opposing the cons-

titutionality of excessive partisan’ gerry-

mandering, which he viewed as a paramount

threat to American democracy. Sadly, Professor

Dorsen died before completing his work. Amici

! Blanket consents to the filing of briefs amici curiae

herein have been filed with the Clerk of the Court by all

parties. Counsel represents, pursuant to Rule 37.6, that no

party, or counsel for a party, has played a role in the

drafting or preparation of this brief amici curiae; nor did

any person or entity other than amici contribute financially

to the drafting, preparation, or filing of this brief. This

brief reflects the personal views of amici and does not

purport to express the views of New York University School

of Law, or of any other entity or institution.

2

have pledged, in his memory, to complete

Professor Dorsen’s unfinished project.

Amici submitted a brief amici curiae in Gill v.

Whitford, No. 16-1165 (June 18, 2018) reflecting

many of Professor Dorsen’s ideas. Since the

constitutional issues posed by extreme partisan

gerrymandering are, once again, before the Court

in this appeal, amici, with the blanket consent of

all parties, respectfully submit this brief amici

curiae further developing Professor Dorsen’s ideas

in the hope that the Court will find it of assistance

in confronting the challenge to American democracy

posed by uncontrolled partisan gerrymandering.

SUMMARY OF ARGUMENT

Until very recently, most constitutional

challenges to extreme partisan gerrymandering

have focused on its unconstitutionally corrosive

effect on equality and fair political repre-

sentation, enabling a transient electoral majority

to acquire, exercise, and entrench legislative

power significantly in excess of its electoral

support in the relevant community. Faced with

highly plausible claims that extreme partisan

gerrymandering violates the guaranty of equal

protection of the laws codified in the 14%

Amendment, this Court has repeatedly recognized

the practice’s unfair and pernicious effects. for

more than three decades, this Court has struggled

to develop manageable judicial standards that, in

the view of a majority of the Court, would enable

judges to determine when politically gerry-

mandered voting and representation is so unfair

as to become unconstitutionally unequal. E.g.,

3

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

Jubelirer, 541 U.S 267 (2004); LULAC vu. Perry,

548 U.S. 299 (2006).

As Justice Anthony Kennedy recognized in his

concurrence in Vieth, however, the constitutional

harms imposed by extreme partisan’ gerry-

mandering do not stop at the Equal Protection

Clause. 541 U.S. at 314. See also Gill v. Whitford,

138 S. Ct. 1916, 1934 (2018) (Kagan, J.,

concurring, joined by Ginsburg, Breyer, and

Sotomayor, JJ). In addition to being uncon-

stitutionally unequal under the 14° Amendment,

extreme partisan gerrymandering violates three

strands of First Amendment doctrine: (1) the First

Amendment equality principle that forbids

government, in the absence of a compelling

justification, from discriminating on the basis of

viewpoint, or treating similarly-situated speakers

differently, E.g., Rosenberger v. University of

Virginia, 515 U.S. 819 (1995) (viewpoint); Citizens

United v. Federal Elections Commission, 558 U.S.

310 (2010) (speaker); (2) the ban on government

regulation likely to depress the level of protected

First Amendment activity, especially in an

electoral context. E.g., Arizona Free Enterprise

Club v. Bennett, 564 U.S. 721 (2011); Davis v.

Federal Election Commission, 554 U.S. 724 (2008);

and (3) a voter's First Amendment right to

exercise a meaningful personal choice over who

will speak for the voter in the halls of legislative

power. Terry v. Adams, 345 U.S. 466 (1953);

Wesberry v. Sanders, 376 U.S. 1, 17 (1964). See

also Burdick v. Takushi, 504 U.S. 428, 446-49

(1992) (Kennedy, J., dissenting).

While natural sorting of the population into

contiguous homogeneous political groupings may

4

make it unduly difficult to draw genuinely

contestable electoral districts in certain areas, in

settings like North Carolina, a “swing state,”

where it is eminently feasible to draw district

lines rendering the majority of Congressional

elections genuinely contestable, the First

Amendment does not tolerate a_ carefully

gerrymandered electoral map that discriminates

on the basis of viewpoint and locks voters into

rigged elections where everyone believes that the

highly probable winners and losers have been pre-

selected by officials wielding state power.

Judicially manageable, generally accepted

metrics exist in the political science literature

that assess the probable contestability of a given

election. Briefly put, measured at the comm-

encement of an election campaign, districts

displaying a 60/40 partisan spread are deemed

uncontestable “landslide” districts; a 55/45

partisan spread creates a virtually uncontestable

“safe” district; 54/46 and 53/47 districts tilt in

favor of one candidate, but are, nevertheless,

“contestable;” while 52/48 districts are statistical

ties deemed “swing” districts. ?

Appellants challenge the accuracy of the

predictive literature described infra in _ n.7,

pointing out, correctly, that it failed to predict fut-

ure electoral contestability in Vieth. Appellants’

Br. at 45. But appellants confuse the difference

between absolute certainty and overwhelming

probability. A day of rain in the desert does

nothing to counteract the overwhelming likelihood

that the next day will be dry. Most importantly,

2 See infra at n.7 for a brief description of the political

science literature underlying the classifications.

5

since the predictive accuracy of the contestability

classifications is widely accepted by both political

leaders and voters alike, a widespread belief

exists, borne out by common sense and experience,

that in the overwhelming majority of elections

neither “landslide” nor “safe” districts are

genuinely contestable. Cf. Buckley v. Valeo, 424

U.S. 1, 26 (1976) (recognizing the importance of

“appearance” in regulating electoral behavior).

(1)

Extreme partisan gerrymandering is a

paradigm violation of the First Amendment duty

to treat viewpoints and _ similarly-situated

speakers equally. Police Dep't of Chicago v.

Mosley, 408 U.S. 92 (1972). See generally,

Kenneth Karst, Equality as a Central Principle of

the First Amendment, 43 U. Chi. L. Rev. 20 (1975).

The very purpose and effect of an extreme

partisan gerrymander is to disadvantage and

frustrate the speech, association, and electoral

efforts of a disfavored political grouping.

(2)

By pre-ordaining the highly probable electoral

outcome, extreme partisan gerrymandering sucks

the proverbial First Amendment oxygen out of the

campaign process, creating a series of non-

competitive electoral boxes within which the level

of campaign spending, speech and association is

necessarily depressed by the widespread belief

that all the speech and association in the world is

highly unlikely to alter the outcome of a rigged

election. Arizona Free Enterprise Club v. Bennett,

564 U.S. 721 (2011); Davis v. Federal Election

Commission, 554 U.S. 724 (2008).

6

(3)

At the core of the republican form of government

guaranteed by Article IV, section 4 are the First

Amendment rights of eligible voters to exercise

“an effective voice in the governmental affairs of

their country, state or community.” Terry v.

Adams, 345 U.S. 461, 466 (1953) (quoting from the

5 Circuit’s rejection of the exclusionary

practice). An extreme partisan gerrymander, by

minimizing (even eliminating) the occurrence

of genuinely competitive elections in a given

political unit, unconstitutionally degrades the act

of voting by draining it of much of its political

power. Williams v. Rhodes, 393 U.S. 23, 30 (1968);

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

7

ARGUMENT

THE FIRST AMENDMENT BARS THE

NORTH CAROLINA LEGISLATURE FROM:

(1) DISCRIMINATING ON THE BASIS OF

VIEWPOINT IN DRAWING VIRTUALLY

UNCONTESTABLE DISTRICT LINES

CONCEDEDLY DESIGNED TO FAVOR

A SINGLE POLITICAL PARTY;

(2) LOCKING AS MANY VOTERS AS

POSSIBLE INTO VIRTUALLY UNCON-

TESTABLE ELECTION DISTRICTS

CHARACTERIZED BY DEPRESSED AND

UNEQUAL LEVELS OF CAMPAIGN

SPENDING, DIMINISHED LEVELS OF

POLITICAL SPEECH AND ASSOCIATION,

AND DISAPPOINTING LEVELS OF

VOTER PARTICIPATION; AND

(3) DENYING NORTH CAROLINA VOTERS

A MEANINGFUL PERSONAL CHOICE

CONCERNING WHO WILL REPRESENT

THEM IN CONGRESS

Introduction and Factual Summary

The court below was confronted with a ruthless

partisan gerrymander of all 13 of North Carolina's

Congressional Districts that intentionally “packs”

many of the state’s reliably Democratic voters into

three overwhelmingly Democratic “landslide”

districts that, predictably, generate massive

8

pluralities for the Democratic candidate,*® while

carefully spreading most of the state’s reliably

Republican voters over the remaining 10

Congressional districts, so that, in each of those

districts, the Republican candidate, based on

voter registration figures and past voting

patterns, enjoyed at least a 10 percentage point

edge at the commencement of the 2018

Congressional campaign. *

% The three “packed” Democratic “landslide” districts

are the 1*, with a Democratic edge in the last three

Congressional elections of 52, 47, and 40 percent; the 4",

with a Democratic edge in the last three Congressional!

elections of 49, 56, and 35 percent; and the 12", with a

democratic edge in the last three Congressional! elections of

59, 53, and 34 percent. Not surprisingly, in 2018, the

Democratic candidates in the three “landslide” districts

prevailed by landslides of 70/30; 72/24; and 73/27,

respectively. The figures are drawn from https://www.pol

itico.com/2014-election/results/map/house/north-carolina/#

XHQIJC2Z0gQ (last visited February 28, 2019); https:

//www .politico.com/2016-election/results/map/house/north-

carolina/ (last visited February 28, 2019); https://www.

politico.com/election-resulta/2018/north-carolina/ (last vis-

ited February 28, 2019).

4 The ten carefully constructed Republican-leaning

districts are the 2°¢, with a Republican edge of 14, 18, and

13 percent in the last three Congressional elections; the 3",

with a Republican edge 26, 36, and 34 percent; the 5%, with

a Republican edge of 15, 22, and 17 percent; the 6", with a

Republican edge of 22, 17, and 18 percent; the 7%, with a

Republican edge of 22 percent in the last two Congressional!

elections; the 8 with a Republican edge of 30 and 18

percent in the last two Congressional elections; the 9% with

a 16 point Republican edge in the 2016 Congressional!

election; the 10%, with a Republican edge of 14, 22, and 26

percent in the last three Congressional elections; the 11“

with a Republican spread of 15, 26, and 28 percent and the

The conceded purpose and effect of the North

Carolina gerrymander was to pre-determine the

winner in each of North Carolina’s 13

Congressional districts. The plan worked. Despite

polling approximately 50% of the vote in the 2018

statewide elections, all four of which were won

narrowly by Democrats,® Democrats were unable

to dent the Republican wall of 10 “safe” or

“landslide” Congressional seats, leaving the North

Carolina Congressional delegation at 9

Republican-3 Democratic, with one unresolved

election that had apparently been won narrowly

by the favored Republican candidate rendered

void by irregularities in the handling of absentee

ballots.®

The 2018 results did not come as a surprise.

Generally accepted guidelines based on the known

attributes of individual voters comprising the

electorate, such as past voting patterns and party

registration, measure the statistical likelihood

13”, with a Republican edge of 14, 15, and 12 percent. The

figures are drawn from the sources cited in n. 3.

5 The four state-wide races were judicial elections.

According to the official North Carolina vote tabulation,

one state Supreme Court race was won by the Democratic

candidate with 49.6% of the vote. Three state Court of

Appeals races were won by Democratic candidates with

50.8, 48.8, and 48.6% of the vote, respectively. See

https://www.wral.com/north-carolina-election-results/1794

4806/?group=judges (last visited February 28, 2019).

6 North Carolina election official have ordered a new

election in the 9% CD on the basis of mishandling of

absentee ballots. Election day tabulations had indicated a

900-vote victory for the favored candidate.

10

that a given election will be contestable with a

high degree of accuracy.’ As amici have noted,

60/40 election districts are generally viewed as

“landslide” districts that are virtually certain to

elect the favored candidate; 55/45 election

districts are “safe” districts that are highly likely

to elect the favored candidate; 54/46 and 53/47

districts are deemed “contestable,” allowing both

sides to entertain a reasonable hope for victory.

52-48 election districts are “swing” districts where

each candidate has a virtually equal chance to

win.

Thus, a_ well-executed extreme partisan

gerrymander — like the partisan gerrymander of

North Carolina’s 13 Congressional districts before

the Court in this appeal — is nothing less than a

7 A massive political science literature discusses the

relationship between political gerrymandering and

competitive elections. For a useful summary, see Heather

K. Evans, Competitive Elections and Democracy in

America: The Good, the Bad, and the Ugly (2014). See also

Keena Lipsitz, Competitive Elections and the American

Voter (U. Pa. Press 2011). See David R. Mayhew,

Congressional Elections: The Case of the Vanishing

Marginals, 6 Polity 295, 304 (1974) (defining as

“reasonably safe” districts in which the majority party

routinely captures 55% or 60% of the vote); see aleo Gary

C. Jacobson, The Electoral Origins of Divided Government:

Competition in U.S. House Elections, 1946-1988, at 26

(“The two thresholds of marginality commonly found in the

literature are 55% and 60% of the vote. Winning candidates

who fall short of the threshold are considered to hold

marginal seats; those who exceed it are considered safe

from electoral threats.”). A popular practical measure, the

Cook PVI, compares “how each district performs at the

presidential level compared to the nation as a whole.”

http://cookpolitical.com/introducing -2017-cook-political-report-

partisan-voter-index (last visited February 28, 2019).

successful conspiracy by a transient electoral

majority to minimize (even eliminate) the

occurrence of genuinely competitive elections in a

political unit. While the art of gerrymandering is

as old as the Republic itself,* its transformation

into a dangerous science rests on three modern

factors: (1) extraordinary advances in technology

making possible the gathering, storage, and

manipulation of a wide swath of information

revealing the political preferences of individual

voters;® (2) the unfortunate polarization of our

political process, motivating political leaders of

both major parties to go to extremes in seeking to

gain short-term electoral advantages over

political rivals, regardless of the long-term harm

to American democracy; and (3) advances in

political science making it possible to calibrate the

likely degree of competitiveness of virtually any

electoral configuration with a high degree of

accuracy. See n. 7, supra.

If one looks forward in time from an intensely

gerrymandered election, one almost always

8 The derivation of the phrase dates from Governor

Elbridge Gerry's effort to draw 1812 electoral lines in

Massachusetts favoring his political allies. In fact, the

practice emerged earlier, when Patrick Henry altered the

electoral lines in the 1788 Virginia Congressional elections

to require James Madison to run against James Monroe.

See Elmer C. Griffith, The Rise and Development of the

Gerrymander (1907).

9 For a summary of technological changes, see Vann

Newkirk Il, How Redistricting Became a Technological

Arms Race, The Atlantic (Oct. 28, 2017), available at

https://www.theatlantic.com/politics/archive/2017/10/ gerr-

ymandering-technology-redmap-2020/543888/ (last visited

February 28, 2019).

12

observes an unfairly skewed legislature that over-

represents the transient electoral majority in

control of the gerrymandering process." If one

looks backward in time, the landscape is littered

with soporific election campaigns characterized by

depressed and unequal levels of campaign

spending, desultory exercises in speech and

association, and disappointing voter turnout.''!

Since rigged election campaigns in intensely

gerrymandered districts are: (1) concededly

intended to distribute electoral benefits and

burdens unfairly on a viewpoint-based basis; (2)

10 The partisan gerrymander before the Court in this

appeal took an evenly divided North Carolina electorate

and intentionally produced a 2016 Congressional!

delegation consisting of 10 Republicans and 3 Democrats,

and a 2018 Congressional delegation of 9 Republicans and

3 Democrats, with one district undecided pending a new

election due to the improper handling of absentee ballots.

'! Applying the generally accepted guidelines measuring

an election's competitiveness, not a single North Carolina

Congressional election district would qualify as “swing” or

“contestable.” Viewing the elections as of the commencement

of the 2018 campaign, the 1*, 3*¢, 4%, 7%, 10%, 11%, and 12%

were at least 60/40 “landslide” districts; and the 2°, 5%, 6”,

8, 9% and 13 were at least 55/45 “safe” districts. Even the

currently undecided 9** CD, where a Democrat almost closed

the “safe” seat gap, appears to have validated the statistical

prediction that the 55/45 favored candidate would win, albeit

by less than one thousand votes. While it is not impossible to

“flip” a “landslide” or a “safe” district, (it may happen in the

9% CD), it happens rarely, usually because of a local scandal,

a national crisis, population shifts, or a surge in the voter

participation of newly enrolled voters. Perhaps most

importantly, landslide and safe districts have the appearance

of inevitability that is fatal to a robust campaign. See

Buckley, 424 U.S. at 28 (recognizing that the “appearance”

of corruption justifies limiting the size of campaign

contributions).

13

naturally characterized by depressed levels of

political activity because they take place against

the widespread belief that all the speech and

association in the world is highly unlikely to affect

the outcome; and (3) destructive of the power of

voters of all political stripes to exercise a

meaningful personal choice over who will serve as

their representatives, the decision by appellants

to lock every Congressional voter in the State of

North Carolina into 13 airless, non-competitive

electoral boxes unconstitutionally burdens the

First Amendment rights of winners and losers

alike.

Accordingly, amici urge the Court to recognize

that the First Amendment bans excessive partisan

gerrymandering in settings where it is eminently

feasible to substitute “swing” or “contestable”

election districts for the steady diet of “landslide”

and “safe” districts produced by partisan political

leaders in full flight from the inconvenience of

competitive elections at the heart of a republican

form of government.

1. The Legal Background of Challenges

to Excessive Partisan Gerrymandering

This is the sixth time that the constitutionality

of political gerrymandering has been before this

Court in a plenary proceeding. Gaffney v.

Cummings, 412 U.S. 735 (1973) (upholding bi-

partisan gerrymandering designed to reflect the

partisan make-up of the electorate); Davis v.

Bandemer, 478 U.S. 109, 132 (1986) (recognizing

that extreme partisan gerrymanders are

unconstitutional when they “consistently degrade

a voter’s...influence on the political process as a

whole.” (plurality opinion of White, Brennan,

14

Marshall and Blackmun, JJ);' Vieth v. Jubelirer,

541 U.S. 267 (2004) (modifying Davis; declining to

consider 14% Amendment-based challenges to

excessive partisan gerrymandering in the absence

of an objective baseline of representative fairness

from which to measure deviation, but holding

open the possibility that a _ judicially

administrable standard may arise under the First

Amendment); LULAC v. Perry, 548 U.S. 299

12 Six members of the Davis v. Bandemer Court ruled

that 14% Amendment-based claims of excessive partisan

gerrymandering pose a justiciable case and controversy.

478 U.S. at 125. The six divided over whether the Indiana

gerrymander before the Court violated the Equal

Protection rights of Democratic voters. Justices White,

Brennan, Marshall and Blackmun held that the evidence

before the District Court did not demonstrate a sufficient

interference with Democratic voters’ ability to play a

significant role in the choice of representatives to

constitute a denial of the equal protection of the laws. 478

U.S. at 129. Justices Powell and Stewart would have

affirmed the District Court's finding of unconstitutionality

based on a showing of a purposeful state effort to

disadvantage Democratic voters that was carried out in

violation of traditional apportionment criteria. 478 U.S. at

176. Justice O'Connor, joined by Chief Justice Burger and

Justice Rehnquist, argued that 14% Amendment partisan

gerrymandering claims posed non-justiciable political

questions. 478 U.S. at 160.

13 Four members of the Vieth Court — Justices Scalia

Chief Justice Rehnquist, and Justices O'Connor and

Thomas — flatly rejected the justiciability of partisan

gerrymandering claims. 541 U.S. at 305. Four Justices —

Justices Stevens, Souter, Ginsburg and Breyer — insisted

that 14% Amendment-based partisan gerrymandering

claims were justiciable, albeit under three differing

standards. 541 U.S. at 326 (Stevens, J); Id. at 346 (Souter

J, joined by Ginsburg, J; and Jd. at 365 (Breyer, J.). Justice

Kennedy cast the swing vote, agreeing that 14%

Amendment-based partisan gerrymandering claims are

15

(2006) (declining to rule on the justiciability of

partisan gerrymandering challenges; rejecting

challenge to mid-census reapportionment;

granting partial relief under Section 2 of the

Voting Rights Act); and Gill v. Whitford, 138 S.

Ct. 1916 (2018) (unanimously vacating and

remanding 14% Amendment equality-based

challenge to statewide partisan gerrymander to

ascertain whether any named-plaintiff suffered a

cognizable injury).'®

non-justiciable in the absence of an objective definition of

political fairness to act as a baseline against which to

measure a given gerrymander, but holding out the prospect

of justiciable First Amendment-based challenges that rest

on the substantive quality of electoral participation. 541!

U.S. at 314.

4 Justice Kennedy, writing for the LULAC Court,

explicitly declined to consider whether partisan

gerrymandering claims are justiciable, continuing the

uncertainty that reigns after Davis and Vieth. 548 U.S. at

423. Two Justices, Chief Justice Roberts and Justice Alito,

ruled that the challengers had failed to provide a judicially -

manageable standard, but declined to consider the issue

generally. 548 U.S. at 492. Two Justices, Scalia and

Thomas, argued that partisan gerrymandering claims are

non-justiciable. 548 U.S. at 511. Four Justices, Stevens,

Souter, Ginsburg and Breyer continued to argue that

partisan gerrymandering claims are justiciable. 548 US. at

447, 485-86, and 492.

1 Two Justices, Thomas and Gorsuch, would have

dismissed rather than remand. 138 S.Ct. at 1941. Four

Justices, Kagan, Breyer, Ginsburg and Sotomayor, issued

a concurring opinion discussing possible justiciable First

Amendment challenges. Id. at 1939-40. A seventh plenary

case, Benisek v. Lamone, 138 S.Ct. 1942 (2018), challenging

a Democratic gerrymander of a single Maryland

Congressional District on First Amendment grounds, was

also disposed of on procedural grounds without

consideration of the merits. The Court, acting per curiam,

16

Until very recently, challengers relied solely on

the 14% Amendment to argue that excessive

partisan gerrymandering generates uncon-

stitutionally distorted representational outcomes

that intentionally deprive a disfavored group of

voters of their fair share of _ electoral

representation."© Challengers have struggled

unsuccessfully for more than three decades to

develop manageable judicial standards acceptable

to the Court’s majority that would enable judges

to determine when politically gerrymandered

representation becomes so skewed as to be

unconstitutionally unfair.'? More recently, as in

unanimously upheld the District court's denial of

preliminary injunctive relief without reaching the merits

because insufficient time existed to alter the district lines

before a forthcoming election. Jd. at 1945. The Maryland

case is once again before the Court on the merits. Lamone

v. Benisek, No 18-726.

‘6 For example, in Davis v. Bandemer, the challengers

complained that the gerrymander of the Indiana state

legislature had enabled the Republican Party to parlay

approximately 48% of the statewide vote into 57 of the 100

seats in the lower house; and approximately 47% of the

statewide vote into 12 of 25 state senate seats. 478 U.S. at

115. In Vieth, one set of plaintiffs challenged only the

statewide representational! distortion without challenging

any particular district. 541 U.S. at 296. One plaintiff

complained of an irregularly drawn district but focused

solely on the representational distortion caused by the

gerrymander. Id at 297. In Gill, the parties were so focused

on statewide representational distortion that they failed to

identify any plaintiff with standing to challenge a

particular election, requiring a remand to explore the

standing issue. 138 S. Ct. at 1933.

'7 In Davis v. Bandemer, six members of the Court

propounded two standards - the plurality asked whether

the gerrymander “consistently degrade[d] a voter's

... influence on the political process as a whole.” 478 U.S.

17

this appeal,'*® challengers have argued that not

only does excessive partisan gerrymandering

unconstitutionally taint the representational

fairness of the ensuing legislature, it violates the

First Amendment in three ways by: (1) flouting

the First Amendment equality principle; (2)

unconstitutionally degrading the quality and

quantity of First Amendment activity associated

with the intensely gerrymandered elections; '* and

at 132. Justices Powell and Stevens asked whether the

gerrymander was an intentional effort to diminish the

representation of a political rival carried out in violation of

traditional districting criteria. Jd. at 185. In Vieth, Justices

Souter and Ginsburg applied a modified Davis plurality

standard, criticizing the lower courts for requiring a

showing that a challenger’s electoral rights had been all!

but extinguished. They would have asked whether electoral

opportunities had been significantly eroded intentionally.

541 U.S. at 347-50. Justice Stevens re-asserted his Davis

standard. Id. at 333. Justice Breyer asked whether the

partisan gerrymander intentionally eroded principles of

representative fairness inherent in American democracy.

Id. at 365. In Gill, the challengers relied on a sophisticated

mathematical model to determine whether a statewide

minority had been “packed” into districts in an intentional

effort to “waste” the electoral significance of their votes.

138 S. Ct. at 1923-24.

18 In this case, the challengers have launched both an

equality-based challenge to representational distortion and

a First Amendment-based challenge to _ electoral

degradation. The three-judge court below accepted both

theories. See Common Cause v. Rucho, 318 F. Supp.3d 777,

800-01 (M.D. N. Car. 2018).

19 A similar decision whether to look forward or

backward from a violation of the one-person one-vote

principle was made by this Court in the cases following

Baker v. Carr 369 U.S. 186 (1962). Baker and Reynolds v.

Sims, 377 U.S. 533 (1964) looked backward to the

malapportioned election, noting the mathematical

18

(3) undermining the power of the ballot by shifting

the real power to choose the winner of an election

to someone other than the eligible voters

themselves. Terry v. Adams, 345 U.S. 461 (1953)

(invalidating shift of power to choose almost

certain winner to private hands); California

Democratic Party v. Jones, 530 U.S. 567 (2000)

(invalidating “blanket” primary giving too much

power to non-party members to select nominee.)

2. Extreme Partisan Gerrymandering

Violates the First Amendment Equality

Principle

The court below recognized that appellants

violated the First Amendment equality principle

by engaging in viewpoint discrimination and

intentionally imposing disparate treatment on

similarly situated speakers. 318 F. Supp. 3d at

935. It is no answer for appellants to argue that

shifting the legal lens from 14 Amendment

equality to First Amendment equality fails to

provide a reasonably objective baseline of fairness

against which to measure an allegedly unequal

gerrymander. Such an argument overlooks a

fundamental analytic difference between a 14‘

Amendment equality challenge, and a challenge

grounded in the First Amendment equality

principle.

As the Court noted in Vieth, a 14% Amendment

equality-based challenge to extreme partisan

disparity in the value of votes cast in a malapportioned

setting. In later one-person one-vote cases, the Court

unanimously declined to hold that a legislature operating

with weighted voting would cure the inequality at the

electoral level. See Board of Estimate v. Morris, 489 U.S.

688 (1989).

19

gerrymandering requires a court to construct a

subjective baseline of electoral fairness against

which to measure an allegedly unconstitutional

deviation. While that process is eminently feasible

in the one-person one-vote context of Baker v.

Carr, 369 U.S. 186 (1962) and its progeny, where

the mathematical value of one person’s vote

provides an objective baseline against which to

measure the mathematical value of a challenger’s

vote, constructing an objective baseline of fairness

has proven elusive in the context of partisan

gerrymandering, where identifying a baseline of

“fair representation” often involves a series of

subjective judgments. But no such analytic

impediment confronts a judge in a_ First

Amendment equality case. Under clearly

established First Amendment doctrine, this Court

has repeatedly held that the _ differential

treatment by the state of viewpoints or similarly-

situated speakers triggers First Amendment strict

scrutiny, without the necessity of constructing a

baseline grounded in a judge’s necessarily

subjective view of fairness. Rosenberger ov.

University of Virginia, 515 U.S. 819 (1995)

(viewpoint); Citizens United v. Federal Elections

Commission, 558 U.S. 310 (2010) (speaker).

20 For additional examples of the enforcement of the

First Amendment equality principle, see Police Dep't of

Chicago v. Mosley, 408 U.S. 92 (1972) (discrimination

between speech about labor and everything else); Carey v.

Brown, 447 U.S. 455 (1980) (same); Widmar v. Vincent, 454

U.S. 263 (1981) (discrimination between religious and

secular apeech) Lamb's Chapel v. Center Moriches Union

Free School District, 508 U.S. 384 (1983) (same);

Minneapolis Star & Tribune v. Minnesota Comm'r of

Revenue, 460 U.S. 575 (1983) (differential treatment of

20

In fact, the only baseline required in a First

Amendment equality case is a description of the

treatment afforded by the state to the favored

viewpoint or speaker. That favorable treatment

then forms the objective baseline against which to

compare the treatment afforded to a disfavored

viewpoint or speaker.

Thus, in Rosenberger v. University of Virginia,

515 U.S. 819 (1995), a state University subsidized

secular student speech but refused to provide

similar support for student speech of a religious

character. In deciding whether the First

Amendment equality principle had been violated,

this Court used as its baseline the University’s

favorable treatment of secular speech and found

that the University was treating speech with a

religious viewpoint less favorably, thereby

triggering First Amendment strict scrutiny. 515

U.S. at 845-46. Similarly, in Citizens United v.

FEC, 558 U.S. 310 (2010), in the wake of Buckley

v. Valeo, 424 U.S. 1 (1976), federal statutes

permitted flesh-and-blood individuals to make

unlimited independent expenditures seeking to

affect the outcome of a federal election but

absolutely forbade corporations from expending

treasury funds in connection with a campaign for

federal office. In assessing the corporation’s First

Amendment claim, this Court used as its baseline

the favored treatment of individuals and ruled

that since the statute was treating one set of

speakers (corporations), less favorably than

similarly-situated speakers); Arkansas Writers’ Project v.

Ragland, 481 U.S. 221 (1987) (eame); RAV v. City of St.

Paul, 505 U.S. 377 (1992) (viewpoint discrimination);

Virginia v. Black, 538 U.S. 343 (2003) (same).

21

another set of speakers, (individuals), the

corporate ban was reviewable under First

Amendment strict scrutiny. 558 U.S. at 340

(applying First Amendment strict scrutiny).

In this case, the North Carolina legislature has

imposed a massive state-wide gerrymander that

intentionally favors Republican Congressional

candidates and voters over Democratic candidates

and voters by constructing 13 electorates that will,

to the maximum extent possible, allow Republican

voters to elect the largest number of representatives

of their choice, while rendering it difficult or

impossible for disfavored Democratic voters to enjoy

an equal political opportunity for representation.

Applying Rosenberger to the viewpoint

discrimination inherent in the gerrymander, and

Citizens’ United to the dis-parate treatment of

similarly-situated speakers inherent in appellants’

intentional decision to favor adherents of one

political party over another, the objective judicially

manageable baseline in this case is North

Carolina’s highly favorable treatment of Republican

voters, allowing a court readily to determine

whether Democratic voters are being treated

substantially less favorably.

Once such differential viewpoint or speaker-

based treatment is found to exist, classic First

Amendment doctrine set forth in Rosenberger and

Citizens United requires North Carolina to

demonstrate that its decision to treat Republican

and Democratic voters differently is necessary to

advance one or more compelling state interests by

the least drastic means. 558 U.S. at 340. It is, of

course, impossible for North Carolina to meet such

a burden of justification. No legitimate — much

less compelling — state interest exists that can

22

justify the state’s blatant discrimination against

Democratic candidates and voters.

3. Extreme Partisan Gerrymandering

Inevitably Degrades the Quantity and

Quality of Intensely Protected

Electoral Speech

This Court has repeatedly invalidated well-

intentioned efforts to improve the democratic

process because the reform proposal before the

Court would — or even might — depress the

quantity and quality of intensely protected

electoral speech. E.g., Miami Herald v. Tornillo,

418 U.S. 241, 256-57 (1974) ([faced with a duty to

print a reply] the “editors might well conclude

that the safe course is to avoid controversy.” As a

result, [the government-enforced] “right of access

inescapably damages the vigor and limits the

variety of public debate...”); Buckley v. Valeo, 424

U.S. 1 (1974) (campaign spending limits would

depress electoral speech); Citizens United v. FEC,

558 U.S. 310 (2010 (denying corporations the

ability to speak during an election campaign

would deprive voters of potentially valuable

information); Davis v. FEC, 554 U.S. 724 (2008)

(allowing candidates access to relaxed campaign

contribution limits to offset the advantage of

significant campaign spending by an extremely

wealthy opponent might deter the wealthy

candidate from expending money to produce

speech); Arizona Free Enterprise Club v. Bennett,

564 U.S. 721 (2011) (dollar-for-dollar match

invalid because it would deter fundraising, and

thus speech, by the privately-funded candidate);

McCutcheon v. FEC, 572 U.S. 185 (2014)

(invalidating generous cap on total campaign

contributions to federal candidates in a single

23

election cycle because it deterred “full-throated”

electoral speech).

In Arizona Free Enterprise Club v. Bennett, 564

U.S. 721 (2011), Chief Justice Roberts wrote for a

five-justice majority in invalidating an Arizona

public financing program that provided a publicly-

funded candidate with a dollar-for-dollar match of

campaign funds raised by a privately-funded

opponent. The Chief Justice predicted that the

knowledge that each dollar raised privately would

result in a dollar-for-dollar match to the

candidate’s publicly-funded opponent would deter

the level of protected fundraising and expenditure

by privately funded candidates. 564 U.S. at 745-

46. When asked to provide empirical support for

the assertion that Arizona’s matching plan would,

in fact, deter the robust exercise of fundraising

and spending by privately-funded candidates, the

Chief Justice responded:

The burden imposed by the matching fund

provision is evident and inherent in the

choice that confronts privately funded

candidates...we do not need empirical

evidence to determine that the law is

burdensome. 564 U.S. at 745-46

(emphasis added) (citing United States v.

Davis, 554 U.S. at 738-40 (“requiring no

evidence of a burden whatsoever” caused

by differential contribution rules

triggered by massive campaign spending

by an extremely wealthy candidate).

The burden on robust electoral speech and

association imposed by intentionally locking every

Congressional voter in North Carolina into

carefully rigged elections, where the voters

24

believe that their speech, association, and

campaign contributions almost certainly cannot

affect the election’s outcome, is far greater than

the deterrent impact on electoral speech imposed

by the regulations in Tornillo, Davis, and Arizona

Free Enterprise.?' Experience and common sense

teach that elections conducted inside a state-

designed airless box of apparent inevitability are

pale shadows of the real thing. Whenever

government has acted to “chill” the “full-throated”

exercise of First Amendment freedoms in the

context of an election, this Court has condemned

the government action as violative of the First

Amendment. The “evident,” “inherent,” and

“inescapable” “chilling effect” on protected

campaign activity caused by excessive partisan

gerrymandering is no different.

The court below recognized that extreme

partisan gerrymandering sucks the proverbial

*! This Court has held that the reasonable perception

of the electorate is an important measure of First

Amendment applicability. Thus, in Buckley, the Court

upheld the constitutionality of limite on the size of

campaign contributions based on the “appearance” of

corruption inherent in unregulated contributions. 424 U.S.

at 26. The lack of such an “appearance” of corruption

doomed efforts to restrict independent expenditures by

individuals and, eventually, corporations. 424 U.S. at 45.

Similarly, the lack of an appearance of corruption (defined

narrowly as quid pro quo bribery) doomed the generous

ceiling on aggregate campaign contributions in a single

election cycle. McCutcheon, 572 U.S. at 227. The

“appearance” of inevitability perceived by the electorate in

a landslide (60/40) or a “safe” (55/45) district is far more

intense that the diffuse “appearance” of corruption relied

on by this Court in Buckley, Citizens United, and

McCutcheon.

25

First Amendment oxygen out of the electoral

campaign process, leaving a series of airless, non-

competitive electoral boxes inside which campaign

speech and association are inescapably depressed.

No one — not even the pre-ordained winner — can

get terribly excited about competing in a rigged

horse race — or campaigning vigorously in a

legislative election that appears to have the

winner pre-ordained by the state.

In Buckley, the Court invoked the metaphor of

an automobile to explain why campaign spending

should be treated as “pure” speech. Campaign

money to a candidate, the Court reasoned, is the

equivalent of fuel in the driver's gas tank. 424

U.S. at 19, n. 18. When, however, the driver in

Buckley is forced by the state to “compete” in a

race with an apparently preordained winner, how

many people will be interested in buying tickets

to watch it, cheering on the drivers, or paying to

put gas in the loser’s tank?

Fund-raising by both candidates in a rigged

election that appears hopeless is_ inevitably

inhibited and skewed.** The disfavored candidate

22 The chilling effect of perceived inevitability is not

unique to the electoral arena. On January 2, 2019, Senate

Majority Leader Mitch McConnell stated, “The Senate will

not waste its time considering a Democratic bill which

cannot pass this chamber and which the President will not

sign.” https://www.reuters.com/article/us-usa-shutdown-

meconnell/senate-will-not-consider-house-democratic-bills-

to-end-shutdown-republican-mcconnell-idUSKCNIOXOI1I

(last visited February 28, 2019).

23 This Court has repeatedly noted that less campaign

money translates into less campaign speech — with a well-

informed electorate the loser. Buckley, 424 U.S. at 39;

will find it difficult if not impossible to persuade

prospective contributors and independent supp-

orters to expend substantial sums on supporting a

candidate who is almost certainly doomed to lose.

The favored candidate will find it difficult, as well,

to persuade donors or independent supporters to

spend their money on a sure thing, when the funds

could be spent on affecting the outcome in a

genuinely contestable race.

The speech and associational activities™

associated with spirited campaigns for office are

also virtually certain to be depressed. Perceived

pre-ordained losers find it difficult, if not

impossible, to mobilize volunteer support for an

apparently doomed candidacy. Sporadic protests

and resigned calls for change there may be; but

never “full throated speech,” with the quality and

intensity of electioneering powered by a plausible

hope that the election can be won.

Pre-ordained winners suffer, as well. Campaign

organizers will find it difficult or impossible to

motivate complacent supporters who see no

reason to devote substantial time and energy to

supporting a candidate who does not appear need

their support.

Citizens United, 558 U.S. at 333; McCutcheon, 572 U.S. at

197.

24 The Court has defined the First Amendment's

associational right as “that freedom to associate with

others for the common advancement of political beliefs and

ideas” and has ranked it as “a basic constitutional!

freedom.” Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973)

27

Finally, voter participation will plummet.”

Why bother to vote when the outcome appears to

be a foregone conclusion?

it is, of course, no answer to argue that

depressing electoral speech or voting in a

“landslide” or a “safe” district causes little real

harm because speech and voting is highly unlikely

to have much impact in a carefully gerrymandered

district. In fact, imposing a soporific electoral

climate on a political unit risks freezing the

intellectual and political status quo, not merely in

a single election but for the foreseeable future;

and not merely in a single district, but in the

entire gerrymandered region. A diet of extreme

gerrymandering and wuncontestable elections

makes it difficult, if not impossible, to generate

the level of political and intellectual ferment

capable of challenging the status quo. See Bertrall

Ross, Partisan Gerrymandering, the First Amen-

dment, and the Political Outsider, 118 Colum. L.

Rev. 2187 (2018). Just as incumbents cannot be

beaten unless challengers are free to raise enough

money to mount a substantial challenge, the

intellectual and political status quo risks being

frozen in place in the absence of a robust free

25 North Carolina, a swing state where statewide races

for Presidential electors and the governorship enjoy a

relatively high voter turnout in excess of 50%, sometimes

reaching 60%, experiences extremely low voter turnouts in

connection with its highly predictable gerrymandered

Congressional elections. In 2018, while the nationwide

turnout in the Congressional election was 58%, not a single

gerrymandered North Carolina Congressional election

reached 50% of the eligible electorate. See supra n. 3 for

2018 North Carolina voting results.

28

market in ideas associated with competitive

elections.

Whenever government has acted to “chill” the

“full-throated” exercise of First Amendment

freedoms in the context of an election, this Court

has condemned the government action as violative

of the First Amendment. The “evident,”

“inherent,” and “inescapable” “chilling effect” on

protected campaign activity caused by excessive

partisan gerrymandering is no different.

4. Extreme Partisan Gerrymandering

Unconstitutionally Degrades a Voter’s

First Amendment Right to Play a

Significant Role in Choosing the Agent

Who Will Speak for the Voter in the

Legislature

This Court has recognized that voters are

entitled under the Constitution to exercise “an

effective voice in the governmental affairs of their

country, state or community.” Terry v. Adams, 345

U.S. 461, 466 (1953) (rejecting the idea that

casting a formal vote is the equivalent of

exercising a meaningful choice). When, as here,

the electorate has been artificially constructed by

the state so that the overwhelmingly likely

winners and losers are never in serious doubt,

voting itself is intentionally degraded from a

powerful instrument of individual choice to an

after-the-fact acknowledgment of a fait accomplis.

The votes cast for a pre-ordained losing

candidate are more accurately characterized as

expressions of protest than as “effective” exercises

29

in political power. The pre-ordained winners’

votes are downgraded from “an effective voice in

the affairs of their country, state or community”

into gestures of acquiescence in an electoral choice

already made for them by the state.”’

In Burdick v. Takushi, 504 U.S. 428 (1992), the

Court rejected the idea that voting was an

exercise of “pure speech.” 504 U.S. at 432-33.

Amici believe that the expansive definition of

“pure speech” adopted by the Court in many other

electoral settings calls the Burdick holding into

question. It is, to say the least, anomalous to grant

First Amendment protection to virtually every

form of electoral activity leading up to the

climactic moment of casting an informed ballot,

but to withdraw First Amendment protection from

the act of speech and association at the core of the

casting a ballot.

26 Protest votes in rigged elections are, of course, not

worthless. As Justice Brandeis taught us in his concurrence

in Whitney v. California, 274 U.S. 357, 377 (1927), they are

important as assertions of self-definition and human

dignity; but they are far from an exercise of genuine self-

government based on informed choice that rests at the core

of representative democracy and a republican form of

government. See Vincent Blasi, The First Amendment and

the Idea of Civic Courage: The Brandeis Opinion in Whitney

vu. California, 29 Wm & Mary L. Rev. 653 (1988).

27 It is no answer to claim that the winning voter may

have had an opportunity to exercise choice during the

nomination process, which is often riddled with obstacles

that include closed primaries in many states, some with

durational waiting requirements as long as 11 months;

financial barriers; ballot access restrictions; and low

turnouts. In any event, a primary is an adjunct to an

election, not a substitute for it.

30

It is, however, unnecessary to overrule Burdick

to recognize that extreme partisan gerry-

mandering robs voters of a genuine “choice in the

election of those who make the laws under which,

as good citizens, they must live.” Wesberry v.

Sanders, 376 U.S. 1, 17 (1964). As Justice Black

concluded in Wesberry: “Other rights, even the

most basic, are illusory if the right to vote is

undermined.” All nine members of the Burdick

court agreed that the ability to exercise an

“effective choice” is at the constitutionally

protected core of casting a ballot. 504 U.S. at 430.

What divided the Court in Burdick was whether

Hawaii's refusal to permit voters to cast write-in

ballots unconstitutionally eroded that choice.

Writing for six members of the Court, Justice

White reasoned that Hawaii's extremely liberal

ballot access laws assured voters the ability to

exercise a wide and effective choice. 504 U.S at

438-39. Justice Kennedy, joined by Justices

Stevens and Blackmun, dissented, arguing that

write-in ballots were an important aspect of

exercising a voter's free choice. 504 U.S. at 442.

Amici believe that all nine members of the

Burdick court would have agreed that voting in

election districts where the outcomes have been

almost certainly pre-ordained by the legislature

could not be called an “effective exercise of

political power” within the meaning of Terry v.

Adams, or a “choice in the election of those who

make the laws” in the words of Justice Black in

Wesberry. Accordingly, amici urge the Court to

hold explicitly what it has often recognized

31

implicitly” — that the freedom to exercise a

meaningful choice about who will serve as a

voter’s representative in the halls of power is not

merely protected by the fundamental rights prong

of the 14% Amendment's guaranty of equality,”

but by both the First Amendment and the

guaranty of a republican form of government. ”

In the early years of American democracy,

voting was physically an exercise of speech, with

voters orally expressing their choice of

representative in public, or publicly submitting a

ballot vividly decorated to reflect its party or

28 See e.g., Williams v. Rhodes, 393 U.S. 23, 30 (1968);

Anderson v. Celebreeze, 460 U.S. 780, 789 (1983)

29 See Harper v. Virginia Bd of Elections, 383 U.S. 663

(1966) (invalidating poll taxes); Kramer v. Union School

District, 395 U.S. 621 (1969) (recognizing equal right to

vote in elections affecting prospective voter); Dunn v.

Blumstein, 405 U.S. 330 (1972 (invalidating durational

residence requirements for voting)

3% Amici acknowledge that settings may arise where it

is not possible to draw “contestable” or “swing” districts

without compromising important neutral principles

governing apportionment. It is unnecessary in this case to

determine the precise point at which natural sorting makes

it unduly disruptive to draw competitive election districts

because it is clearly possible to render some or all of North

Carolina’s Congressional districts genuinely competitive

without disturbing traditional apportionment criteria like

one person-one vote, compactness and contiguity. When

non-competitive elections derive from natural sorting, no

constitutional issues are raised because state action is

absent. The Constitution is violated only when the state

imposes non-competitiveness when competitive elections

are eminently feasible.

32

candidate.*' In the late 19" century, the “secret

ballot” replaced viva voce voting in order to

protect vulnerable voters from external pressures

about how their free choice was to be exercised. *

But the communicative nature of the vote

remained intact — with the communication

becoming anonymous and directed to the official

charged with declaring the winner. Accordingly

amici urge the Court to acknowledge the

communicative act at the heart of casting a ballot,

and to begin the process of developing the

appropriate level of First Amendment protection

of the right to vote.™

3! See Donald A. Debats, How America Voted: By Voice,

and How the Other Half Voted: The Party Ticket States,

available at sociallogic.iath.virginia.edu (University of

Virginia)

32 For the history of the adoption of the Australian

ballot, see L.E. Fredman, The Australian Ballot: The Story

of an American Reform (Michigan State University Press,

1968).

33 It is not necessary in this case to determine whether

such a communicative act is entitled to the highest level of

First Amendment protection available to pure speech, or

whether intermediate First Amendment scrutiny available

to “speech brigaded with action” is more appropriate.

Compare Texas v. Johnson, 491 U.S. 397 (1989) (flag

burning as an act of protest constitutes pure speech

entitled to the highest level of free speech protection) with

O’Brien v. United States, 391 U.S. 367 (1968) (draft card

burning constitutes communicative conduct entitled to

intermediate First Amendment protection). The extreme

example of partisan gerrymandering before the Court in

this appeal clearly flunks both strict and intermediate

First Amendment scrutiny because it lacks a legitimate

state interest, much less a compelling or substantial one.

33

CONCLUSION

The quality and intensity of a voter's First

Amendment participation in the electoral process

~ listening to the candidates; choosing a preferred

candidate; working with others in support of that

candidate; and casting a ballot for a candidate of

choice — is deeply dependent on the voter's belief

that that it is the voters themselves who are

empowered to decide who will win an election.

Extreme partisan gerrymanders destroy that

belief. The decision of the court below should be

affirmed.

Dated: New York, New York

March 8, 2019

Respectfully submitted,

Burt Neuborne

(Counsel of Record)

Norman Dorsen (1930-2017)

40 Washington Square South

New York, New York 10012

(212) 998-6172 (office)

(917) 734-8478 (cell)

burt. neuborne@nyu.edu

Counsel for Amici Curiae*

* Counsel acknowledges the valuable assistance of Danie!

Milechman, a third-year student at Berkeley Law School, in the

research, writing, and preparation of this brief amici curiae.

Appendix Describing Amici Curiae

Aryeh Neier served as Executive Director of the

ACLU from 1970-1978. He worked closely with

Professor Dorsen on issues of international

human rights as Vice Chair and Executive

Director of Human Rights Watch from 1978-1993,

and President, and President Emeritus of the

Open Society Foundations from 1993- 2017.

John Shattuck served as Legislative Director of

the ACLU from 1976-1984. Ambassador Shattuck

worked closely with Professor Dorsen to advance

democracy as President and Rector of Central

European University in Budapest from 2009-2016,

Assistant Secretary of State for Democracy,

Human Rights, and Labor from 1993-1998, and

United States’ Ambassador to the Czech Republic

from 1998-2000.

John Sexton is the Benjamin Butler Professor of

Law, Dean Emeritus of NYU School of Law, and

President Emeritus of New York University.

President Sexton worked closely with Professor

Dorsen, who served from 1988-2015 as his

Counsellor as Dean and University President.

Helen Hershkoff is the Herbert M. and Svetlana

Wachtell Professor of Constitutional Law and

Civil Liberties at NYU. She served with Professor

Dorsen as Co-Director of the Arthur Garfield Hays

Civil Liberties Program, and as Associate Lega!

Director of the ACLU from 1988-1995.

Sylvia Law is the Elizabeth K. Dollard

Professor of Law, Medicine, and Psychiatry at

NYU. She served with Professor Dorsen as Co-

Director of the Arthur Garfield Hays Program,

2a

and worked closely with him in founding Society

of American Law Teachers.

Nadine Strossen is the John Marshall Harlan I!

Professor of Law at New York Law School. She

succeeded Professor Dorsen as President of the

ACLU, serving from 1991-2008.

Stephen Gillers is the Elihu Root Professor of

Law at NYU. He worked closely with Professor

Dorsen on issues related to Professional

Responsibility and legal! ethics.

Martin Guggenheim is the Fiorello LaGuardia

Professor of Clinical Law at NYU. He worked

closely with Professor Dorsen on the development

of clinical education and protection of the rights

of children.

Gara LaMarche served as Associate Director of

the New York Civil Liberties Union and, from

1984-88, as Executive Director of the Texas Civil

Liberties Union. He worked closely with Professor

Dorsen on democracy-related issues while at the

Open Society Institute and as President of

Atlantic Philanthropies.

Burt Neuborne served as Assistant Legal

Director of the ACLU from 1972-1974, and as

National Legal Director from 1981-1986. He

worked closely with Professor Dorsen in defense

of civil liberties for more than 50 years and serves

as the inaugural Norman Dorsen Professor in

Civil Liberties at New York University School of

Law.