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

ROBERT A. RUCHO, et al,

Appellants,

v.

COMMON CAUSE, et al,

Appellees.

On ApreaL From THE Unrrep Srates Distraict Court

ror THE Mippie Disraict or Nortu Caro ina

BRIEF OF AMICUS CURIAE THE NATIONAL

REPUBLICAN REDISTRICTING TRUST

IN SUPPORT OF APPELLANTS

i

TABLE OF CONTENTS

TABLE OF CONTENTS. ..........-00000000eeees

TABLE OF AUTHORITIES .............6600000.

INTEREST OF AMICUS CURIAE ..........6666:

Il. INDIVIDUAL RIGHTS TO BE FREE

OF A POLITICAL GERRYMANDER

DO NOT EXIST, AND UPON CLOSER

EXAMINATION ARE JUS. A

RHETORICAL REFORMULATION

OF POLITICAL PARTIES’ CLAIMED

RIGHTS TO PROPORTIONAL

REPRESENTATION ..........-0000000005

A. Intentional Cracking and Packing

B. Cracking and Packing Ultimately

Measures Injury to a Party that

Coincides with the Party’s

Failure to Achieve Statewide

it

Table of Contents

Page

C. Failingto Recognize The“Lossof Weight”

as a True Injury for Political

Leaves this Court’s Minority Vote

Dilution Precedent Undisturbed......... 17

Il. A SYSTEM OF PROPORTIONAL

REPRESENTATION IS FOREIGN TO

OUR SYSTEM OF GOVERNMENT

AND CANNOT COEXIST WITH

TRADITIONAL DISTRICTING

PIRIOOEE EAD oo occ ccccccccccccvccesoevees 18

A. Systems of Proportional Party

Representation Have No Place in

B. Experience in Missouri and Elsewhere

Shows That Party-Proportional

Representation is at War With

Il. ACONSTTITUTIONAL “GROUP RIGHT’ TO

ut

TABLE OF AUTHORITIES

Page

CASES

City of Mobile, Ala. v. Bolden,

446 U.S. 55, 100 S. Ct. 1490,

Ee 5, 20

Common Cause v. Rucho,

279 F. Supp. 3d 587, 664 (M.D.N.C.), vacated and

remanded, 138 S. Ct. 2679 (2018)... .......... 6... 7

Davis v. Bandemer.

Dt sccbtbeceesescesbesoose passim

v.

a oo. oe scenes 12, 26

Gill v.

EL pcctceecsescecececes passim

League of United Latin Am. Citizens v. Perry,

548 U.S. 399, 126 S. Ct. 2594,

165 L. Ed. 2d GO9 (2006) ..............0005e 7, 8, 20

Thornburg v. Gingles,

ied oe cad idcowcteceecs 14, 18

Vieth v. Jubeltrer,

CE 21, 28

Whitcomb v. Chavis,

Table of Authorities

Page

White v. Regester,

06 pcncnneaanessasenadesat 20

Whitford v. Gill,

218 F. Supp. 3d 837 (W_D. Wis. 2016). ........... 28

OTHER AUTHORITIES

ED odcncuaccccesecéeccccennnses 18

Mo. Const. art. ITI, § 3(1)(b). . . . . . . . 2... eee eee 23, 24

ED oc cc ncnencnadenbeonsadas 17

ED occvccccdencasssesessaudus 17

i 2

MISCELLANEOUS

James A. Gardner, Foreword:

Representation Without Party:

Lessons From State Constitutional

Attempts to Control Gerrymandering,

37 Rutgers L.J. 881 (2006) ..............65555- 20

James A. Gardner, One Person, One

Vote and the Possibility of Political

Community, 80 N.C. L. Rev. 1237

Table of Authorities

Page

i 19

a Bai cd cdddcuchusceeuaded 19

1

INTEREST OF AMICUS CURIAE'

The National Republican Redistricting Trust, or

NRRT, is the central Republican organization tasked

with coordinating and collaborating with national, state,

and local groups on a 50-state Congressional and state

legislative redistricting effort set to begin next year, in

2020.

The NRRT’s mission is threefold. First, it aims to

ensure that redistricting faithfully follows all federal

constitutional and statutory mandates. Under Article I,

pe ean te pine ig ge

to Congressional supervision, that are entrusted with

the responsibility of redrawing the states’ Congressional

districts. Every citizen should have an equal voice, and the

Voting Rights Act and other federal laws must be followed.

These federal mandates protect the constitutional rights

of individuals, not political parties or other groups.

Second, the NRRT believes redistricting should be

clean, a requirement best fulfilled by the traditional

redistricting criteria our state legislatures have applied

for centuries as the country grew from coast to coast. This

means that districts should be sufficiently compact and

preserve communities of interest by respecting municipal

and county boundaries, avoiding the forced combination of

1. Counsel for all parties have consented to the filing of this

brief. Pursuant to Rule 37.6, no counsel for any 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 amicus curiae, its members, or

its counsel made a monetary contribution to the preparation or

submission of this brief.

2

disparate populations to the extent possible. Clean districts

are consistent with the principle that legislators represent

individuals living within identifiable communities.

Legislators do not represent political parties, and we do

not have a system of proportional representation. Article

I, $4 of the Constitution tells courts that any change in

Third, the NRRT believes that redistricting should

make sense to voters. All Americans should be able to

look at their district and understand why it was drawn the

way it was. Districts do not need to be bizarrely shaped.

SUMMARY OF THE ARGUMENT

and the lower court adopted the rhetoric

of individual rights to overturn a North Carolina

redistricting plan that comports with traditional

redistricting criteria. Their proposed standard purports

to overcome the last remaining obstacle to finally declare

partisan gerrymanders unconstitutional. But upon closer

examination, the “individual right” to be free of political

gerrymandering—or as Appellees would have it, the right

to be free from packing and cracking—.s in reality nothing

more than a political party’s group right to proportional!

representation. As Chief Justice Roberts remarked at

oral argument in last Term’s partisan-gerrymandering

cases, so-called “partisan symmetry” is nothing more

than a “convenient label” for “proportional representation,

which has never been accepted as a political principle in

the history of this country.” Oral Argument Tr., Gill v.

Whitford, No. 16-1161 (Oct. 3, 2017) at 41.

3

Still, it is worth considering the claims of individual

right on their own terms, from the perspective of an

individual voter, to see whether individuals lose something

palpable when they are “packed” or “cracked.” As it turns

out, casting a claim of political gerrymandering through

the prism of each individual voter’s experience yields a

kaleidoscope of complication. Voters may well be packed

and cracked, reside in uncompetitive districts, and, based

on myriad factors, may greatly vary in the representational

“weight” they carry with their legislators. Yet none of

these substantial variations in voters’ political influence,

many of which might trace to state action, or might have

no connection to state action at all, has ever been deemed

an equal protection violation. Additionally, the baseline

from which Appellees measure their allegedly individual

injuries depends on their political group’s claimed right

of proportionality. And even that right is defined by

extrapolating the results of previous statewide votes.

Cracking and packing, then, does not truly represent

individual injury. Instead, it ultimately measures injury

to a party that roughly coincides with the party’s failure

to achieve statewide proportional representation.

Should that right to proportional representation

nonetheless be adopted? As amicus curiae shows below,

this Court should adhere to its longstanding refusal to

Missouri and other states shows that the principle of

proportional representation is logically and legally at war

with traditional community-based representation; the two

cannot co-exist.

4

In addition to being alien to our system of

government, a statutory or constitutional “group right” to

proportional representation is unworkable. A proportional

representation system overlooks the reality that, as this

Court has held, voters can—and often do—move from

one party to the other. Voter choices fluctuate, and party

affiliation is not enough to tie the interests of a group to

the personal interests of voters for preferred candidates.

Simply put, the votes of yesterday do not ensure the

victories of tomorrow. Finally, if there is to be a nationwide

shift to prioritizing proportionality as between the two

parties, that decision is for the state legislatures and

Congress—not for the courts.

ARGUMENT

I. INDIVIDUAL RIGHTS TO BE FREE OF A

POLITICAL GERRYMANDER DO NOT EXIST,

AND UPON CLOSER EXAMINATION ARE

JUST A RHETORICAL REFORMULATION OF

POLITICAL PARTIES’ CLAIMED RIGHTS TO

PROPORTIONAL REPRESENTATION

Appellees claim to have surmounted what they see as

the last remaining hurdle for political gerrymandering

plaintiffs after Gill v. Whitford, 138 S.Ct. 1916 (2018).

Not only has North Carolina packed and cracked voters

who say they will always vote for Democrats, Appellees

claim to be voters who will be unpacked or uncracked—

or at least less packed or cracked—by a remedial map.

Believing they have thus solved the problem of standing,

Appellees proceed to show how their claims satisfy

modified intent-and-effect tests under either or both of

the Equal Protection Clause or First Amendment.

5

Not so fast. That any number of intent-and-effect-

based tests can be modified to fit on the chassis of a

political gerrymandering claim does not mean that there

exists, in the first place, an individual right to be free

of political gerrymandering. See City of Mobile, Ala. v.

Bolden, 446 U.S. 55, 76, 100 S. Ct. 1490, 1504, 64 L. Ed.

2d 47 (1980) (“But plainly ‘{i}t is not the province of this

court to create substantive constitutional rights in the

name of guaranteeing equal protection of the laws,’”)

(internal citations omitted) (abrogated by statute on other

grounds). Step zero must be the identification of the right.

Appellees do, in fact, identify the right they seek to

vindicate, but only indirectly, in the “effect” prongs of their

proposed tests. The effect of gerrymandering at the level

of an individual voter is said to be a loss of “weight” arising

from “cracking” or “packing”: having one’s vote grouped,

respectively, with either too few or too many others who

voted identically. Yet as shown below, neither cracking

nor packing represents a true individual injury. Instead,

these phenomena work an injury only when considered

from the perspective of a major political party, and are

judicially remediable only to the extent the party itself

has a constitutional right to proportional representation.

A. Intentional Cracking and Packing Does not

Cause a Palpable Injury at the Level of the

Individual Voter

Appellees’ proposed right to be free from political

gerrymandering can be restated under their dilution

theory as a right not to live in a district in which their

currently chosen political party (assuming they have

one) has been cracked or packed. Common Cause Motion

6

to Aff. at 18. But how is an individual voter harmed by

a packed or cracked district? Appellees claim to have an

answer. They know they cannot sustain a claim if their

packing or cracking injury is merely the defeat of their

preferred i

Although it may not be initially apparent, “weight” in

this new context does not mean the same thing as “weight”

in the one-person, one-vote context. That is clearest when

we consider what it means to “lose” that “weight” in each

distinct context.

1. Inmalapportionment cases, “weight” means the ratio

between a person’s vote and the number of representatives

elected. When districts are malapportioned, we know

precisely what an individual voter has lost. It is certain

that each and every voter in a less populous district

has a greater opportunity to elect a legislator than

each and every voter in a more populous district. The

votes of those living in overpopulated districts are

underweighted, or diluted, by the precise ratio of their

district’s overpopulation. Significantly, the individual

injury is complete without any further contingency. The

voter’s party—f he or she currently identifies with one—is

utterly irrelevant. Nor does it matter whether each voter’s

preferred candidates will end up winning or losing. At

the very outset, as soon as the districts are drawn, it is

certain that the vote will mean less.

2. “Weight” measures a different quality in a

political gerrymandering claim. It does not, as in

a malapportionment claim, measure each voter’s

7

opportunity to cast a ballot that counts equally for or

against the election of a legislator. “Weight” cannot

be the quality of having an equal probability of having

one’s preferred candidate actually elected (which would

require strict partisan parity in a two-candidate race).

It cannot be the quality of having a chance to elect one’s

preferred candidate that is equal to the proportional

strength of one’s party. See Davis v. Bandemer, 478 U.S.

109, 131 (1986) (plurality op.) (“...the mere fact that a

particular apportionment scheme makes it more difficult

for a particular group in a particular district to elect the

representatives of its choice does not render that scheme

constitutionally infirm.”). Nor is “weight” a measure of the

backward-looking reformulation of the “equal chance to

win” right. League of United Latin Am. Citizens v. Perry

(“LULAC”), 548 U.S. 399, 419, 126 S. Ct. 2594, 2610, 165 L.

Ed. 2d 609 (2006) (“To be sure, there is no constitutional

requirement of proportional representation, and equating

a party’s statewide share of the vote with its portion of

the congressional delegation is a rough measure at best.”).

Finally, Appellees do not seem to claim a right to

cast votes that are potentially equally outcome-decisive.

This would seemingly require maximizing partisan-

competitive districts in which every voter had an equal

chance of casting the deciding vote, and as the court below

recognized, “the Supreme Court has never held that the

Constitution entitles voters to competitive districts.”

Common Cause v. Rucho, 279 F. Supp. 3d 587, 664

(M.D.N.C.), vacated and remanded, 138 S. Ct. 2679 (2018).

3. If none of these ex ante or post hoc conceptions

of “weight” apply, only one option can remain: “weight”

for gerrymandering purposes seemingly attempts to

8

measure the average influence a voter might expect to

of all voters are aggregated and the election results are

known. This is the “loss,” then, that an individual voter

would need to suffer in fact. And indeed, both the League

Appellees (Motion to Affirm at 32) and the decision of

the court below (279 F. Supp. 3d at 656) admit that the

“effect” test is ultimately premised on whether, as a result

of new districts, the legislator is “nonresponsive” or “will

not feel a need to be responsive” to “constituents.” See

also LULAC, 548 U.S. at 418 (partisan gerrymandering

plaintiffs would need to “show a burden, as measured by

a reliable standard, on the complainants’ representational

rights.”).

Appellees admit, as they must, that under their theory, a

voter living in a cracked district suffers a constitutionally

cognizable dilution injury even if, in an uncracked district,

her preferred candidate would still have lost. Common

Cause at 18. The lost weight could only consist of the

individual voter’s hypothetical loss of influence with

the winning candidate. This, in turn, requires courts to

assume that the winner will always be less responsive to

the voices of the voters who make up a political minority

that is smaller than the still-minor group they would have

formed in an uncracked district.

Now posit the case of the voter living in a packed

district whose candidate would have won anyway in an

unpacked district. This, too, is a case of “lost weight” for

at least the Common Cause Appellees. Again, from an

9

individual voter’s perspective, it could only consist of the

voter’s hypothetical loss of influence over his preferred—

and winning—candidate. In this scenario, Appellees

would apparently ask courts to assume one of two things.

Either the winner is less responsive to the voices of the

voters making up his winning coalition than he would

have been in a closer election, believing that some of the

bandwagon can be lost without penalty. Alternatively, the

“unpacked” voter might have moved elsewhere. He could

have become more essential to a winning candidate in

another more competitive district, or could have shored

up an already-losing district to form part of a more-

substantial minority that might have bargained for more

of the opposing-party-winner’s attention.

4. In any scenario, numerous assumptions about voter

and officeholder behavior and beliefs are clearly necessary

to measure a voter’s “weight” with the winning candidate,

and then decide whether it has actually been “lost” in a

way that yields individual injury. This problem is not

new. At least as early as Whitcomd, this Court struggled

to give form to a claim of lost “voting strength” by a

Marion County, Indiana. Whitcomb v. Chavis, 403 U.S.

124, 153-154 (1971).

This Court correctly recognized that a constitutional

claim, if cognizable, would somehow have to be grounded

in the poor performance of Marion County’s delegation

in representing the discrete racial community. /d. at 154-

155. It was skeptical that this was or could be shown, as

the quality of legislators’ performance arguably varied by

issue. Jd. at 155. Additionally, the Court recognized that

10

the discrete community retained a claim at least to the

“partial allegiance” of Marion County’s delegation, just

as did other Marion County subgroups whose preferred

candidates had also lost; merely being “outvoted” was not

tantamount to a lack of representation. /d.

disproportionate representation and an actual injury did

not subside after Whitcomb. “An individual or group of

individuals who votes for a losing candidate is usually

deemed to be adequately represented by the winning

candidate and to have as much opportunity to influence that

candidate as other voters in the district.” See Bandemer,

478 U.S. at 132. Bandemer “refuse[d] to presume,”

without “actual proof to the contrary, that the candidate

elected will entirely ignore the interests of the voters.”

Thus, “without specific supporting evidence, a court

cannot presume in such a case that those who are elected

group.” /d.

But the plot thickens even beyond the considerations

outlined in Whitcomb and Bandemer: in the real world,

the determinants for the post-election “weight” of an

individual voter—i.e., the quality that Appellees say

gerrymandering diminishes on an individual level—are

considerably more complex.

function of the effectiveness of the voter’s association with

may not have voted consistent with the voter in the past

election, or who may not even reside within the district.

11

Voter coalitions form around issues and splinter in ways

that do not follow the fault line between our two big-tent

parties. Individual voters and their representatives can

and do change their minds. And to a great degree, all

of this depends on the quantity and quality of voters’

interactions with their elected representatives.

Common experience tells us, too, that even without the

daily complexities of politics, there are large background

variances in representational “weight.” Some voters suffer

‘eon chronically low representational “weight” simply

because they have chosen to live among concentrations of

their fellow citizens who are agreeable in every way except

party affiliation. Other voters enjoy high representational

weight because they live in areas where their preferred

candidate usually wins—but not by much—so that, as the

voters who theoretically supply the margin of victory, their

voices carry great weight.

Further, in contrast to the weight accorded individual

votes in properly apportioned districts, this sort of

“weight,” to the extent it is knowable, does

not have the quality of something for which a baseline can

be identified, and then equalized as between individuals.

The average individual in a longstanding political minority

geographically ensconced among a political majority will

simply not enjoy the same representational weight as

the individual voters in the surrounding majority, even

without a gerrymander. And all else equal, legislators will

not likely accord equal political weight to the wishes of

all voters even within their winning majorities. Instead,

the voters most likely to desert the coalition may well find

themselves with more leverage and, therefore, greater

political weight.

12

Finally, even bipartisan political gerrymanders

done in the name of party-to-party fairness—i.c.,

proportionality—will necessarily privilege some voters

over others from a representational standpoint if the Court

were to accept this theory of representation. See Gaffney

v. Cummings, 412 U.S. 735, 751 (1973). Voters may well be

packed and cracked, creating uncompetitive districts and

wide variation in individual voters’ “weight,” all to serve

the parties’ goal of statewide proportionality. Yet none

of these myriad differences in voter political influence,

many of which (as in Gaffney) trace to state action, has

ever been deemed an equal protection violation.

5. In sum, casting a claim of political gerrymandering

through the prism of each individual voter’s experience

yields a kaleidoscope of complication. Myriad inquiries into

the political relationship between and among individual!

voters and their legislators become necessary. “If there

are less appropriate subjects for federal judicial inquiry,

they do not readily come to mind.” Whitcomb, 403 U.S. at

170 (Harlan, separate opinion).

This is not simply a problem of indeterminate social

science or a failure of proof that political scientists are

on the cusp of curing. Instead, “weight” represents

an unknowable quality that is more dependent on the

vicissitudes of individual-group politics than on any action

of the state. Attempting to maintain some tenuous link to

Whitcombd’s offspring, Bandemer, the Appellees and the

district court still recite “responsiveness” to “constituents”

as part of the effects prong of their proffered dilution test.

Yet the absence of facts on this point in the massive record

below shows that the concept of responsiveness—always

of suspect usefulness—has devolved into a vestigial

13

utterance. Litigants and courts have long since stopped

trying to isolate the quality of representative-constituent

“weight,” let alone measuring its loss as an injury-in-fact.

Because this “loss of weight” is the only remaining

conceivable outcome of packing and cracking at the level

of an individual voter, it follows that cracking and packing

does not injure the individual right to vote.

B. Cracking and Packing Ultimately Measures

Injury to a Party that Roughly Coincides

with the Party’s Failure to Achieve Statewide

Proportional Representation

coherently be described as an injury to an individual voter.

But when viewed from the perspective of a political party

itself, the presence of injury is more palpable. Indeed, over

30 years ago, the first and last decision of this Court in

which a majority could be mustered to hold that a partisan

gerrymandering claim could be justiciable recognized

in a flash of clarity that “the claim is that each political

group in a State should have the same chance to elect

representatives of its choice as any other political group.”

Bandemer, 478 U.S. at 124.

1. That gerrymandering exists exclusively as a

group injury makes sense on several levels. If one takes

Appellees’ simplified version of American politics as they

present it—with two entirely homogenous and unified

parties—the concept of vote “weight” depends entirely on

the voter and candidate adhering rigidly to one party (and

its entire platform of issues and candidate endorsements)

or the other. There is no “weight” to gain or lose without

14

the assumption of the party. Otherwise, there is no basis

whatsoever—tet alone the “actual proof” demanded by

Whitcomb and Bandemer—for assuming that when a

voter’s preferred candidate loses, a representational

injury will occur.

2. Even more important, the baseline from which

Appellees measure their allegedly individual injuries

depends on their political group’s claimed right of

proportionality. If the representational “weight” of a vote

is what matters, one must be able to define the baseline

value to determine what weight has been “lost” under a

given plan of apportionment. See Thornburg v. Gingles,

478 U.S. 30, 88 (1986) (O’Connor, concurring in judgment,

explaining that “in order to decide whether an electoral

system has made it harder for minority voters to elect

the candidates they prefer, a court must have an idea of

how hard it ‘should’ be... under an acceptable system.”).

What is Appellees’ baseline? Recall Appellees’

admission that a voter in a cracked district may have

injury-in-fact if, in an uncracked plan, her candidate

would still lose. The injury was presumably the difference

between the challenged plan and the “uncracked plan.”

Signyicantly, however, the individual baseline 1s set by

reference to the party’s statewide proportional “claim.”

That is, it is compared against the proposed alternative

map that is alleged to yield more seats for the challenging

the “uncracked plan” is necessarily a plan in which each

party’s wasted (cracked or packed votes) are as equal

as practical. The efficiency gap and other measures

are simply ways of moving parties toward statewide

proportionality. That is precisely what Justice O’Connor

15

predicted in her Bandemer concurrence: a “group right”

that will eventually be whittled down to “some loose form

of proportionality.” Bandemer, 478 U.S. at 157.

Is it really necessary, however, for Appellees to base

their supposedly individual injury claims on the party’s

statewide proportional “claim?” As a practical matter, the

answer is yes. Suppose that some other baseline were used

to measure the voter’s loss-of-weight injury: for each voter,

it should be possible to prepare a district to yield his or her

“greatest representational weight.” This would attempt

to ensure that the voter was in the smallest consistently

winning coalition in a district where he or she could live,

or if that were not possible, in the largest losing coalition

(assuming it is possible to decide the point at which

being increasingly tightly packed into a winning district

becomes less preferable than being slightly cracked in a

just-barely-losing district).

First, note that it will probably be the case in this

will egregiously lessen the representational weight of

many other voters near and far, both within and without

his or her party. Indeed, each of these voters would

also have his or her own baseline. How would each

voter’s supposed interest in obtaining his or her best

individualized “weight” be accommodated, particularly

where the transparent intent of any remedial plan

would be to minimize the weight of the voter’s political

opponents? These conflicts may be unresolvable.

Second, note that each individual baseline is bound to

differ from the party’s statewide proportion-maximizing

baseline. Sometimes that difference could be pronounced.

16

That is because a party seeking to maximize the

“efficiency” by which it converts votes into seats will need

to minimize wasted votes. In some cases, this may require

minimizing the number of voters in districts the party

cannot win, even though from the individual

of that party’s voters who live in the core of the district

and will have to be included, their own representational

weight would be greater if they had more allies with

whom to collectively garner the political attention of their

opposite-party representative. See, e.g., Bandemer, 478

U.S. at 154 (O’Connor, concurring in the judgment).

4. In short, Appellees’ claims are invariably those

of one party—the Democrats—even though individual

plaintiffs have been found to fill most of the challenged

districts. The Appellees rely on plans—baselines

constitutes a partisan gerrymander—that tend toward

a proportional representation for the party itself, and

not necessarily to maximizing the asserted interest

of the individuals in representational weight. See, e.g.,

Bandemer, 478 U.S. at 154 (O’Connor, concurring in the

judgment, explaining how a bipartisan gerrymander

intended to achieve party proportionality can harm the

rights of independent voters and minority party voters in

overwhelmingly adverse districts).

Not only should this be unsurprising, it is inevitable.

That is because, as shown above, representational weight

as an individual right quickly becomes an incoherent

concept upon close scrutiny. On the other hand, party

proportionality is a concrete concept, is the only coherent

baseline, can be measured mathematically, and is

achievable by the only person-in-interest that consistently

has the means to plan and litigate: the political party (or,

17

if the right is recognized, any other mass political group

with a claim to effective representation).

There is simply no way around it: Appellees’ claims

only cohere, and are only measured by Appellants and

measurable by a court, as group claims for proportional

political representation.

C. Failing to Recognize The “Loss of Weight” as

a True Injury for Political Purposes Leaves

this Court’s Minority Vote Dilution Precedent

Undisturbed.

Some may object that if the “loss of weight” from

cracking and packing does not constitute injury-in-fact,

then minority vote dilution—which has long been analyzed

through the same lens—may soon go without remedy. But

classifications are not treated the same way:

Our Constitution has a special thrust when

it come to voting; the Fifteenth Amendment

says the right of citizens to vote shall not be

‘abridged’ on account of ‘race, color, or previous

condition of servitude.’

Whitcomb, 403 U.S. at 180 (Douglas, dissenting in part

and concurring in the result in part).

The Fourteenth and Fifteenth Amendments simply

give federal courts “greater warrant” to “intervene for

protection against racial discrimination. Bandemer, 478

U.S. at 151 (O’Connor, concurring in judgment). Race

is “an immutable characteristic.” Bandemer, 478 U.S.

at 156 (O’Connor, concurring in judgment). Where an

18

individual immutably belongs to a racial minority group

“vulnerable to exclusion from the political process,” and

proof of past and present experience proves that there is

a link between group voting strength and the individual

right to participate in the political process, group-based

analysis that is untenable on the basis of politics may well

support a dilution claim on the basis of race.” Jd. at 152.

This proof of a link between individual rights and

group membership, fortified with express constitutional

authority by way of the Civil War Amendments and

enforced by the Voting Rights Act, sets minority vote

dilution claims apart from partisan gerrymandering

theories. If this Court now makes clear that it will not

recognize political groups’ rights masquerading as

individual voter dilution claims, it will leave the law

prohibiting minority vote dilution undisturbed.

ll. A SYSTEM OF PROPORTIONAL

REPRESENTATION IS FOREIGN TO OUR

SYSTEM OF GOVERNMENT AND CANNOT

COEXIST WITH TRADITIONAL DISTRICTING

PRINCIPLES

A. Systems of Proportional Party Representation

Have No Place in Our Constitutional Order

1. Whether conveniently labeled “partisan symmetry,”

the “efficiency gap theory,” or something else, systems

2. Section 2 of the Voting Rights Act has been construed to

provide statutory authority for voter dilution claims based on race.

See 52 U.S.C.A. § 10301(a). See generally Thornburg v. Gingles, 478

U.S. 30 (1986).

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of proportional representation are altogether foreign

to our system of republican government. In Federalist

No. 35, Alexander Hamilton reasoned that proportional

representation of “each class” was neither practicable

nor neceszary, noting that, “[t]he idea of an actual

representation of all classes of the people, by persons

of each class, is altogether visionary. Unless it were

expressly provided in the Constitution, that each different

occupation should send one or more members, the thing

would never take place in practice.” The Federalist No. 35.

Indeed, the Framers understood the dangers of employing

mathematical calculations to create a proportional

representation system of government, see The Federalist

No. 55 (James Madison) (“Nothing can be more fallacious

than to found our political calculations on arithmetical

principles.”).

The reasoning of the Framers applies not only to the

federal system but also to the makeup of state legislatures.

In our system of government, “[t]he roots of Anglo-

American political representation lie in the representation

of communities, not individuals ....” James A. Gardner,

One Person, One Vote and the Possibility of Political

Community, 80 N.C. L. Rev. 1237, 1243-45 (2002).

Accordingly, the American electoral system is based on

the notion that individual voters within a district elect their

representatives, without having their community adjusted

by political scientists or mathematicians attempting to

level the playing field by factoring in statewide partisan

vote shares.

Indeed, “[bly the time of the Revolution, the founding

generation fully accepted this account of representation.

The idea that the political interests of communal groups

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of individuals correlated strongly with territory served,

for example, as an axiom in Madison’s famous defense

of the large republic in The Federalist No. 10.” James

A. Gardner, Foreword: Representation Without Party:

Lessons From State Constitutional Attempts To Control

Gerrymandering, 37 Rutgers L.J. 881, 935-36 (2006).

“The idea that territorially defined local communities may

reliably serve as proxies for the shared, collective interests

of the individuals who inhabit them has remained a fixture

in American political thought ever since.” /d.

2. Building on those principles, this Court repeatedly

has held that the Constitution does not require states

to provide proportional representation in legislatures,

“however phrased,” Mobile, 446 U.S at 79, to political,

social, or other interest groups, id., at 75-76, (“The Equal

Protection Clause of the Fourteenth Amendment does

not require proportional representation as an imperative

of political organization. ... [PJolitical groups [do not!

themselves have an independent constitutional claim to

representation ....”); LULAC, 548 U.S at 419. A group is

not constitutionally entitled to a districting scheme that

will afford it “legislative seats in proportion to its voting

potential.” White v. Regester, 412 U.S. 755, 765-66 (1973).

Simply put, “|wljhatever appea! [proportional

representation] may have as a matter of political theory, it

is not the law.” Mobile, 446 U.S. at 75. Such “entitlement...

simply is not to be found in the Constitution of the United

States.” Id. at 76.

Even in the recent fractured opinions on the subject, a

majority of justices of this Court have rejected the notion

that the Constitution requires proportional representation.

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In Bandemer, this Court emphasized that the Constitution

requires neither “proportional representation [nor] that

legislatures in reapportioning must draw district lines

to come as near as possible to allocating seats to the

contending parties in proportion to what their

statewide vote will be.” 478 U.S. at 130. In Vieth v.

Jubelirer, the Court again rejected the notion that the

Constitution requires proportional representation. 541

U.S. 267, 288 (2004) (plurality op.). And, despite Vieth’s

repudiation of Bandemer, it nevertheless reaffirmed that

equivalently sized groups. It nowhere says that farmers

or urban dwellers, Christian fundamentalists or Jews,

Republicans or Democrats, must be accorded political

strength proportionate to their numbers.” Vieth, 541

U.S. at 288.

B. Experience in Missouri and Elsewhere Shows

That Party-Proportional Representation is at

War With Traditional Districting Principles

1. Proponents of judicial policing of party-proportional

representation sometimes appear to suggest that

proportionality need not supplant traditional redistricting

principles. And if the peculiar record in this case were

representative of the rest of the country, that argument

may initially appear to have force. After all, Appellees’

experts worked from what they claimed were thousands

of randomly-generated maps that followed traditional

redistricting principles, and then from among those,

criticized the challenged 10-3 Republican-favoring map

as far outside a purported norm in which

might win just 7 seats. See, e.g., Dist Ct. Op. 155-161. The

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implication is that courts can have both: perhaps hundreds

or thousands of maps will be consistent with traditional

criteria, and of those, a significant portion will still give

the Democratic and Republican parties the overall share of

seats they are “entitled to” under various party-proportion

measuring tests.

But in reality, at least some Appellees ask for a

principle that is far more sweeping. Once intent is shown,

they would have courts sustain a challenge as soon as

“cracking” or “packing” is shown—in other words, so

long as there is any “injury in fact” as they have defined

it. Common Cause Motion to Aff. at 37. Recall that this

includes even cracked plaintiffs whose candidate would

still lose, or packed plaintiffs whose candidates would

still win. Thus, it is not hard to conceive district-level

challenges even to a North Carolina map that had been

drawn with just a 7-6 Republican advantage, so long as

Democrats could conceive of another 7-6 Republican map

which increases their chances of capturing seats—a factor

which they can and will re-name as the “uncracking”

of “unpacking” of individual voters. The only role for

traditional factors would be the state’s assumption of the

burden of “justifying” the cracking and packing using

those factors—a showing that could easily be brushed

aside if plaintiffs could rebut by proving that other

In practice, then, judicial recognition of such a zero-

tolerance partisan proportionality principle will force

political parity to bubble to the top of the redistricting

cocktail, while traditional redistricting principles will sink

to the bottom. This gradual “paling” of non-proportional

factors is almost inevitable, as Justice O’Connor noticed

long ago in her Bandemer concurrence. 478 U.S. at 157.

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As a theoretical matter, it makes sense that one set of

criteria is at war with, and must prevail over, the other.

As explained in subsection A, traditional redistricting

criteria are largely based upon the underlying assumption

that legislator” provide representation to people in a

district, who, fractured though they may be based on

different points of view, share local communities, a local

history, a local economy, and local political subdivisions. In

throughout a state. “Districts” only have meaning as ratios

of party members who mathematically will or will not

assure the party of the correct aggregate representation.

The two models of representation are diametrically

opposed, then, in their fundamental organizing principles

as well as under the legal tests Appellees would ask this

Court to adopt.

2. Should there be any doubt about what lies ahead,

the Ghost of Redistricting Future could direct this Court

on a tour of Missouri's new state legislative apportionment

process. Approved by voters who were primarily sold on

lowered contribution limits and limits on lobbyist gifts,

the new plan mandates that Missouri apply the concepts

of wasted votes and “efficiency gap” analysis used by

Professor Jackman below and in the Gill case.

Specifically, Missouri defined two goals: “partisan

fairness” and “competitiveness.” Mo. Const. art. III,

§ 3(1)(b). In a moment of candor, the former term is

defined as the group right “that parties shall be able

to translate their popular support into legislative

representation with approximately equal efficiency.”

Id. Next, “competitiveness” turns out not to mean

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that districts will be competitive, but instead, that

the “efficiency” achieved by the plan remains durable:

“parties’ legislative representation shall be substantially

and similarly responsive to shifts in the electorate’s

preferences.” /d.

Missouri next requires the calculation of an index of

recent party performance. /d. Using this index, the plan is

to minimize the gap in each of the two parties’ percentage

of “wasted votes,” which are defined as votes cast for a

losing candidate or for a winning candidate “in excess of

the fifty percent threshold needed for victory.” Mo. Const.

art. III, § 3(1)(b). Crucially, the plan does not pass muster

merely by satisfying a threshold efficiency gap of seven

or twelve percent, as Professor Jackman proposed in the

district court and in Gill. Instead, the plan is required to

make the gap “as close to zero as practicable.”

Further, the resulting plan must be durable. It must

survive a series of stress tests in which the partisan split

in the statewide vote shifts by various percentages in favor

of each party. Each time, the plan must “ensure” that the

efficiency gap remains “as close to zero as practicable.”

Missouri’s Constitution had long recognized the

paramount importance of traditional criteria such as

contiguity, compactness of districts, and preservation of

local communities. Each of those factors were expressly

subordinated to the new party-based right to proportional

representation. Contiguity was made “subject to the

requirements of subdivision... (1)(b),” the efficiency gap

test. Mo. Const. art. III, § (1X). Preservation of local

subdivision boundaries, in turn, was made subject to both

the efficiency gap test and contiguity. Art. ITI, §(1)(d). And

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all of these factors were made to “take precedence over

compactness where a conflict arises between compactness

and these standards.” Art. III, §(1\e).

In short, the drafters of Missouri’s constitutional

version of the “efficiency gap” method of party-proportional

representation expressly recognized that: (1) this is truly

a group, not an individual, right; and (2) that achieving

their party-proportional goal required the complete

subordination of traditional redistricting criteria. Voters

living in the shadow of the St. Louis Arch may then

constitutionally share a Missouri Senate district with

Bootheel voters, unconnected by any contiguous territory.

Lacking a local constituency, to whom will the district’s

senator look? Under the new rationale of the Missouri

Constitution, she will have to look to her party. Because

Missouri will now balance the “wasted votes” of her excess

majority (and of the losing candidate) across the state,

other districts may well share similar characteristics.

Those senators, too, will look to their parties or to other

influences, as their “districts” will simply be a mirage, a

legal fiction created to sustain a party’s group right. This

Court can now part ways with the Ghost of Redistricting

Future, but for Missouri, this is reality.

3. Missouri's new procedure does raise a final test for

Appellees. Were this Court to recognize an “individual

right” to avoid the loss of representational weight

(see Section I, supra), could Missouri's new explicitly-

voters will likely experience substantial gains and losses

in the “weight” of their own votes once their interests are

subordinated to the overall electoral success of the “party”

they are predicted to support. This loss is the “injury-in-

fact” that Appellees claim meets the effects prong of their

equal protection test. Common Cause Appellees Mot. to

Affirm at 37.

Next, depending on the precise content of the “intent”

part of the test, a plan like Missouri's that explicitly

seeks to aid the statewide party at the expense of

localized pockets of that party’s voters could be deemed

to discriminate against the localized pocket or wing of the

party that is deliberately “submerged” as a necessary set

of “wasted” votes.

Finally, could a party’s state-recognized “group right”

to a form of proportional representation act as justification

for this loss? With little discussion, this Court in Gaffney

declined to intervene in Connecticut’s statewide bipartisan

gerrymander even though it denied certain district

minorities any chance to elect representatives of their

choice. 412 U.S. at 754. But would this reasoning be

consistent with a newly-recognized individual right to

representational weight? If not, then a true individual

right of the type that Appellees claim to support would

be flatly at odds with the more candidly-named “group

right” to “partisan fairness” that true believers inserted

into Missouri’s Constitution. In fact, as shown above in

Section I, Appellees’ claimed individual right does not

exist, and is a mere rhetorical recasting of the group right

that Missouri has recognized, but that this Court has held

time and again does not exist.

4. Missouri’s experience, then, lifts the veil on the

claimed individual right to an equally-weighted vote. It

is not only a group right in disguise, it is at war with

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traditional redistricting principles because it is based

on legislators’ representation of parties rather than

communities. This back-door attempt at

representation is foreign to our republican form of

government and demonstrates the danger of embracing

Appellees’ theory.

Iil.A CONSTITUTIONAL “GROUP RIGHT” TO

PROPORTIONAL REPRESENTATION IS

UNWORKABLE

1. In addition to being alien to our system of

Se ceuh aeieiatibe Uaiieaamanaeen 0

partisan gerrymandering claim is really “about group

political interests, not individual rights.” 138 S.Ct. at

1933. However construed, this focus on group interests

impliedly—and wrongly—assumes that individuals

exercise their right to vote as members of a party rather

than as citizens. As Chief Justice Roberts recognized

during oral argument in Gill, voters in United States

elections cast their votes for a wide variety of reasons

separate from party affiliation. See Tr. at 34 (“Sometimes

people vote for a wide variety of reasons. Maybe the

candidate, although he’s of a different party, is a friend,

is a neighbor. Maybe they think it’s a good idea to have

the representatives from their district to balance out what

they view would be necessary -- likely candidates from

other districts.”).

2. Appellees’ proposed standard purports to mix all

voters across a state and assume they would consistently

vote for candidates from a political party regardless of the

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district where they live, the candidates running, the issues,

the party platform, and any other election-specific reasons.

It assumes that voters are unchanging in the candidates

they support and only support candidates of a certain

party. But individual voters are not monolithic, faceless

automatons who merely pull the lever for a particular

party year after year and disregard the candidates and

issues. To the contrary, voters choose to split tickets, some

citizens identify as independents, districts change over

time, candidates’ views can vary widely even under the

same party banner, and each election presents different

issues. As this Court has held, “[pjolitical affiliation is

not an immutable characteristic, but may shift from one

election to the next; and even within a given election, not

all voters follow the party line. We dare say (and hope)

that the political party which puts forward an utterly

incompetent candidate will lose even in its registration

stronghold.” Vieth, 541 U.S. at 287.

A proportional representation system overlooks the

reality that “voters can—and often do—move from one

party to the other.” Bandemer, 478 U.S. at 156 (O’Connor,

J., concurring). This is because “[pjarty affiliation is not

set in stone or in a voter’s genes...” Whitford v. Gill,

218 F. Supp. 3d 837, 936 (W.D. Wis. 2016) (Griesbach,

J., dissenting) (“The assumption underlying Plaintiffs’

entire case is that party affiliation is a readily discernable

characteristic in voters and that it matters above all else

in an election.”). Yet for every election, “the candidates

change, their strengths and weaknesses change, their

campaigns change, their ability to raise money changes,

the issues change - everything changes.” Vieth, 541 U.S.

at 289. Unlike the immutable characteristic of race, voter

choices fluctuate, and party affiliation is not enough to tie

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the interests of a group to the personal interests of voters

for preferred candidates. Simply defining the group to be

afforded the right to proportional representation depends

on the impossible task of predicting voter behavior over

the life of a districting plan. The votes of yesterday do not

ensure the victories of tomorrow.

This is not the only uncertainty. In addition to the

and affinity groups that make up those parties, yet it

is unclear in appellees’ party-based entitlement plan

how those other groups would be treated in a system

of proportional representation. Why should parties be

candidates and issues will be presented in each cycle,

changing the membership of any conceivable “group”

as well as the representational relationship between the

group members and the elected official. It is impossible to

predict how decisive a vote will be in any future election,

or how responsive the resulting winner will be.

3. Appellees would ultimately have this Court embrace

a Quantum Theory of Voting. Just as quantum mechanics

posits the electron as a sort of probability, crystallizing as

a definite particle only by the fleeting observation of an

outside agent, a “group” —and by extension its associated

and courts choose to look for it, and by the very act of

looking bring it into reality. Quantum Voting will prove

unworkable and unmanageable for both legislatures and

the courts. In the first place, as explained above, the

constitution provides rights for definite individuals; it

does not provide clouds of voters with probability-derived

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rights to certain numbers of seats. Second, a claim of

political gerrymandering based on “partisan symmetry”

necessarily abandons the concept of representation of

individual communities and replaces it with a theory based

on group rights inhering to the benefit of political parties

and factions.

Instead, this Court should allow state legislatures

to continue to apply the traditional, community-based

districting standards that have prevailed since the

Founding. Those standards, which include compactness,

contiguity, equality of population, and preserving

natural government boundaries, are best designed to

comport with the Framers’ constitutional design and

strengthen our system of republican government. Happily,

those traditional standards will also keep courts from

experimenting with Quantum Voting, identifying groups

and their “fair” shares of the legislature.

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CONCLUSION

For the foregoing reasons, the Court should reverse

Respectfully submitted,

Epwarp D. Grem™

Counsel of Record

Lucinna H. LUETKEMEYER

Graves Garrett LLC

11000 Main Street, Suite 2700

Kansas City, Missouri, 64105

(816) 256-4144

edgreim@gravesgarrett.com

Counsel for Amicus Curiae