Amicus Curiae Brief — Lamone v. Benisek, 139 S. Ct. 1316 (2019) (No. 18-726)

No. 18-726

IN THE

Supreme Court of the Hnited States

>

LINDA H. LAMONE, et ai.,

Appellants,

Vv

O. JOHN BENISEK, et ai.,

Appellees.

+

On Appeal from the United States District Court

for the District of Maryland

+

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE AND BRIEF OF

REPRESENTATIVE-ELECT DAVID TRONE AS

AMICUS CURIAE IN SUPPORT OF

APPELLANTS

+

WILLIAM J. MURPHY

Counsel of Record

JOHN J. CONNOLLY

ZUCKERMAN SPAEDER LLP

100 E. Pratt St., Suite 2440

Baltimore, Maryland 21202

410 332 0444

wmurphy@zuckerman.com

Counsel for Amicus

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF APPELLANTS

Pursuant to Rule 37.2, Representative-elect David

Trone respectfully requests leave to submit a brief as

amicus curiae in support of appellants. Undersigned

counsel provided notice of an intent to file this amicus

brief to counsel for the parties on December 14, 2018,

more than 10 days before this brief was due.

Appellants’ counsel has consented to the filing of this

brief. Appellees’ counsel has withheld consent.

Mr. Trone, a Democrat, was elected in November

2018 to represent the people of Maryland’s sixth

district in the House of Representatives. He will

become a member of the 116 U.S. Congress on

January 3, 2019. This case concerns whether

Maryland’s sixth district will retain its current form

for the 2020 election cycle, when Mr. Trone hopes to

stand for re-election. The evident intent of the

appellees, plaintiffs below, is to ensure that the sixth

district will be redrawn to make it more difficult for

Mr. Trone or a member of his political party to

prevail in the 2020 election. Mr. Trone campaigned

throughout the sixth district in 2018 and believes he

understands its ethos. As a politician on the frontier

of the partisan gerrymandering issue and a member

of the next Congress, he has concluded that the three-

judge court’s decision is impracticable and potentially

harmful, and that solutions should come from

Congress. None of the parties in this case has Mr.

Trone’s perspective and no one, he believes, is more

directly affected by the ruling below than he is.

Accordingly, Mr. Trone respectfully requests that

the Court grant his motion for leave and accept the

attached brief for filing in this matter.

December 19, 2018

Respectfully submitted,

WILLIAM J. MURPHY

Counsel of Record

JOHN J. CONNOLLY

ZUCKERMAN SPAEDER LLP

100 E. Pratt St., Suite

2440

Baltimore, Maryland

21202

410 332 0444

wmurphy@zuckerman.com

Counsel for Amicus

TABLE OF CONTENTS

Page

TAREE Ge ATT Be cneccccceccceccccveccsccccsececess ii

INTEREST OF THE AMICUS CURIAE............... l

SUMMARY OF ARGUMENT ............00.................. 3

I i ccna teldinasiahl esata innate 5

|. History, Geography, and Political

Demography of Maryland’s Sixth

— RRRSTRSEES REE Aes ee eee 5

ll. The Court should Endorse Objective

Criteria that Establish when a Redrawn

District is Not Subject to Constitutional

Ill. By Reasonable Objective Measures,

Maryland’s Redrawn Sixth District is

Not Subject to Constitutional Attack for

Partisan Gerrymandering............................-. 17

SE EEE IEE nee 22

‘i

TABLE OF AUTHORITIES

Page

CASES

Davis v. Bandemer, 478 U.S. 109 (1986) ......... 13, 22

Gaffney v. Cummings, 412 U.S. 735 (1973)... passim

Gill v. Whitford, 138 S. Ct. 1916 (2018)........... 14, 16

League of United Latin Am. Citizens v. Perry,

tiie 13, 20

Maryland Citizens Comm. for Fair Cong.

Redistricting, Inc. v. Tawes, 253 F. Supp. 731

AIR ia eat a 6

Vieth v. Jubelirer, 541 U.S. 267 (2004)............ 13, 22

CONSTITUTIONAL PROVISIONS

Pee eee Ye eae 13

ey SS | eS Pree 13, 21

OTHER AUTHORITIES

Citizen Legislature Anti-Corruption Reform

Act, H.R. 145, 115 Cong., § 5 (1% Sess.

ae sucinsesinideieiieatnainanitdidiaiadiaaidiiilii at ncncemaneidd 22

Editorial Board, David Trone for Congress in

Maryland, Washington Post (Oct. 22, 2018)........ 1

Maryland’s 6“ congressional district,

Wikipedia, available at

https://en. wikipedia.org/wiki/Maryland%27s _

6th_congressional_ district (last accessed

Md. State Bd. Elections, Elections by Year,

Representative in Congress (election year

2008), available at

https://results.elections.maryland.gov/electio

ns/2008/results/general/gen_results 2008 4_

ERE Sra SSSR Os eee 200 a 12

Md. State Bd. Elections, Elections by Year,

Representative in Congress (election year

2018), available at

https://results.elections.maryland.gov/electio

ns/20 18/results/general/gen_results_2018 2_

Md. State Bd. Elections, Elections by Year,

Representative in Congress (elections of

2002 through 2006), available at

https://results.elections.maryland.gov/electio

ns/2002/results/g_representative_in_congres

s.html;

https://results.elections.maryland.gov/electio

ns/2004/general/congress. html;

https://results.elections.maryland.gov/electio

ns/2006/results/general/office_Representativ

Md. State Bd. Elections, Eligible Active Voters

on Precinct Register (as of Oct. 21, 2012),

available at

https://results.elections.maryland.gov/press_

room/documents/PG 1 2/PrecinctRegisterCoun

le RE SS AT A TES Ee Se 12

iv

REPUBLICAN PRESS AT A DEMOCRATIC

CONVENTION (J. Connolly ed. SEANCES 8

The Federalist No. 59 (A. Hamilton)

1

INTEREST OF THE AMICUS CURIAE'

Amicus curiae David Trone has been elected to

represent the people of Marvland’s sixth district in

the House of Representatives and will become a

member of the 116" U.S. Congress on January 3,

2019. Mr. Trone first ran for office in the 2016

Democratic primary for Maryland's’ eighth

congressional district, finishing second. On August 2,

2017, he announced his candidacy for an open seat in

the adjacent sixth district and thereafter campaigned

extensively throughout the district. In June 2018, he

won the Democratic Party nomination over four

challengers. The Washington Post endorsed Mr.

Trone in the general election “by a mile” over a

Republican candidate who had “dismissed

Montgomery County, where she and a big chunk of

the district’s constituents live,” in favor of the more

Republican-leaning sites in the west of the district.

Editorial Board, David Trone for Congress in

Maryland, Washington Post (Oct. 22, 2018). On

November 6, 2018, Mr. Trone won the general

election with 59 percent of the vote, compared with

38 percent for the Republican candidate and about 3

percent for other candidates.

Mr. Trone is a Maryland native who grew up on a

struggling family farm in south central Pennsylvania,

near the Maryland border. He completed graduate

business school and started a small business in

Pennsylvania, and then moved to Montgomery

' No counsel for any party authored this brief in whole or in

part and no person or entity other than amicus or his counse!

made a monetary contribution for the preparation or submission

of this brief. The parties received notice of this filing.

2

County, Maryland, where he and a brother built and

ran one of the country’s largest and most successful

retailers of wine and other beverages. The company is

based in Montgomery County and today employs

more than 4000 people nationwide. Mr. Trone and his

wife raised four children in Montgomery County,

where Mr. Trone once coached 13 different youth

sport teams in a single year. He has contributed

millions of dollars to local and national charities.

Mr. Trone’s unusual background in conservative-

leaning endeavors like farming and

entrepreneurship, layered against an extensive

history of liberal philanthropy, helped him connect

with voters throughout the sixth district. The district

encompasses an historic corridor of Maryland that

runs from the commuting exurbs of Washington D.C.

into rural communities rooted in farming,

manufacturing, and tourism. At one time the political

and commercial interests of the district were roughly

linked by the original route of the Baltimore & Ohio

Railroad and by the Chesapeake & Ohio Canal, two of

the State’s greatest public works projects. Today the

district is defined more by Interstates 270 and 70,

along with the non-navigable, upper reaches of the

Potomac River and its tributary, the Monocacy. Mr.

Trone believes the people of the district today, while

broadly split among the two major political parties,

are not deeply conservative or liberal, but instead are

united by a pragmatism and industriousness that

suits his background and personality. He is honored

to be their representative and hopes they re-elect him

in 2020. He desires that the sixth district retain its

current form until then.

3

SUMMARY OF ARGUMENT

This Court has struggled to find a workable test

that will define constitutional limits on partisan

gerrymandering. The resulting uncertainty is not a

jurisprudential flaw; it is a feature of competing

constitutional values that cannot be easily reconciled.

Ignoring this reality, the three-judge court gave life

to the aphorism that for every complex problem there

is an answer that is clear, simple, and wrong. The

court fashioned and applied a concise three-part test

that yielded an absurd result: the invalidation, as an

excessively partisan gerrymander, of a redrawn

congressional district that is geographically compact

and politically competitive; is more compact and

competitive than the one it replaced; and is far more

competitive than the state as a whole.

Perhaps the quest for a simple test to measure

unconstitutionally partisan gerrymandering is worth

pursuing. But not in this case, which is easily

resolvable by accepting that a redrawn district is

constitutional if it satisfies any one of five objective

measures of the geographical shape and political

composition of the redrawn district, rather than by

requiring a review of the conduct and the subjective

intent of legislators, map-drawers, voters, and other

stake-holders in the redistricting process. In this

case, the Court should hold that a redrawn

congressional district is not subject to constitutional

attack for partisan gerrymandering, regardless of the

multiple reasons it was redrawn, if the resulting

district is:

1. Reasonably compact and cohesive;

4

2. More compact and _ cohesive than its

predecessor;

3. Reasonably competitive as measured by the

percentage split in party registrations;

4. More competitive, as measured by the

percentage split in party registrations, than its

predecessor; or

5. More competitive than the state-wide split in

party registrations.

Maryland’s re-drawn sixth district meets all five of

these criteria, but any one should be enough to pass

constitutional muster. The Court has been clear that

a partisan motive is not enough to invalidate a

redrawn district. E.g., Gaffney v. Cummings, 412 U.S.

735, 752-53 (1973). A natural corollary is that a re-

drawn district that has geographic or political

cohesion, or that diminishes objective measures of

partisanship when compared with the prior district,

cannot be unconstitutional even if partisanship was a

significant force in the redistricting process. A

redrawn district that meets those criteria is

fundamentally within the purview of the state’s

political actors. Only if a re-drawn district violates

these criteria should the judiciary examine the

subjective intent of the redistricting authorities or

the individual harms to voters.

Adopting one or more of these neutral principles

may not resolve every case of i partisan

gerrymandering, but it will provide clear, achievable,

and constitutional targets for redistricting personnel.

And it will supplant the dangerous precedent reached

by the three-judge court in this case, in which a

finding of sufficiently partisan intent inevitably

results in a constitutional injury, and an order to

5

redraw a district that is perfectly satisfactory as a

constitutional matter and could very easily become

more partisan as a result of the order.

ARGUMENT

I. HISTORY, GEOGRAPHY, AND

POLITICAL DEMOGRAPHY OF

MARYLAND’S SIXTH DISTRICT

In assessing the redrawn sixth district, the court

below focused mostly on what it saw as partisan

intent in repositioning clusters of voters after the

2010 decennial census. Mixed into its assessment of

intent, however, was some commentary about the

geographic and demographic characteristics of the

new district. The tenor of the commentary was that

the new district made less sense than the old because

it traded large portions of four northern and eastern

counties for a section of western Montgomery County.

See JS App. 54a.

The court's commentary was misguided. The

redrawn sixth district has a firm historical grounding

and is more geographically and politically cohesive

than the one it replaced. The three-judge court

observed that “[sjince 1966,” the sixth district

included “all of Maryland’s five most northwestern

counties — Garrett, Allegany, Washington, Frederick,

and Carroll Counties.” JS App. 5a. But the 1966 map

was not drawn by state politicians; it was drawn by

an earlier three-judge court that had concluded the

unequal populations in the existing districts violated

the Supreme Court’s “one person, one vote” rule. See

Maryland Citizens Comm. for Fair’ Cong.

Redistricting, Inc. v. Tawes, 253 F. Supp. 731, 734 (D.

6

Md. 1966). By contrast, from 1872 through 1966, all

of Montgomery and Frederick counties were included

with the three western counties in a_ single

congressional district. See ECF 186-17, at Maps 7-10.

Moreover, in 1972 the sixth district included portions

of northern Montgomery County, see id. at Map 12,

and after the 1980 census the sixth district was

redrawn to include large portions of western and

northern Montgomery. /d. at Map 13. Montgomery

became essentially its own district after the 1990

census, id. at Map 14, but was then fragmented after

the 2000 census, with a small arm in the north of the

county assigned to the sixth district. Jd. at Map 15.”

This 2002 map remained in place through the 2010

elections and became the baseline for the three-judge

court’s assessment of the current sixth district. The

2002 (baseline) and 2011 (current) maps are

reprinted below as they were introduced in the record

(excluding their inserts, which focused on other

districts). See ECF 186-14, 186-15. The sixth district

2 Prior to the 1992 redistricting, voters in the sixth district

had a long history of electing members of both parties, many of

them moderates. Starting in 1911, the succession ran:

Democratic (1911-17, David J. Lewis); Republican (1917-31,

Frederick N. Zihlman); Democratic (1931-39, David J. Lewis);

Democratic (1939-41, William D. Byron); Democratic (1941-43,

Katharine Byron); Republican (1943-53, James G. Beall);

Republican (1953-59, DeWitt S. Hyde); Democratic (1959-61,

John R. Foley); Republican (1961-69, Charles M. Mathias Jr.);

Republican (1969-71 John G. Beall Jr.); Democratic (1971-78,

Goodloe E. Byron); Democratic (1979-93, Beverly Butcher

Byron). After the 1992 redistricting, the seat was held for 20

https://en. wikipedia. org/wiki/Maryland%27s 6th congressional

district (last accessed Dec. 12, 2018).

7

is salmon in the 2002 map and light green in the

2011 map.

2062 CONGRESGIONAL FESTRACTING PLAN

Suse Bl 6 Diy Gh, 2008

The court focused on the net change in Democratic-

or Republican-registered voters in the district

without acknowledging that the redrawn district was

more compact and cohesive than its predecessor. As

shown above, the 2002 map extended from the

Susquehanna River in the east all the way to the

State’s western border, encompassing large pieces of

Harford and Baltimore counties that have never been

8

meaningfully connected with western Maryland. See

ECF 186-8, at 18, 20. Even Carroll County has

minimal cultural connection to western Maryland.

Harford, Baltimore, and Carroll counties are all part

of the Baltimore-Columbia-Towson metropolitan

statistical area.

By contrast, the northern and western portions of

Montgomery County in the current sixth district are

closer to the western counties and have long been

politically and culturally associated with them.

Historically, the district was connected by the

Potomac River, by the Chesapeake and Ohio Canal

that runs alongside it, and by the original western

line of the Baltimore & Ohio Railroad. The B&O,

running west from Baltimore along the Patapsco,

turned south just below Frederick and ran roughly

along the Frederick corridor of the current district,

before turning west along the Potomac toward the

coal fields in the western counties (crossing into what

is now West Virginia for a stretch). A spur into

Frederick opened in 1831, forming the Frederick

Branch that still carries commuters today under the

banner of the State’s MARC service. The development

and operation of the C&O Canal and B&O Railroad

were major political issues in Maryland in the 19”

Century, when regional political blocs often sought

state investment and support for railways and canals.

The Canal in particular was a longtime financial

albatross for the State and was a major funding

concern at the State's 1867 Constitutional

Convention before it finally stabilized, at least for a

time, in the late 19" Century. See, e.g., REPUBLICAN

PRESS AT A DEMOCRATIC CONVENTION 788-816 (J.

Connolly ed. 2018) (reprinting convention debates).

The Canal and the Railroad were western Maryland's

9

principal commercial corridors before the

proliferation of the automobile and they created

common interests for communities along the line.

Today, the district remains connected by the

Potomac and Monocacy rivers. The Canal right-of-

way is now a popular linear park that traverses most

of the district. And the most heavily populated

sections are connected by the I-270/I-70 corridor

running north and west out of Washington D.C. This

corridor is the State’s modern growth engine, forming

its own community of technology and other modern

businesses and institutions. See ECF 186-17, at 19;

ECF 186-8, at 15, 18, 22. (The national headquarters

of Mr. Trone’s business is situated at the base of the

corridor, just outside the district.)

The redrawn sixth district is not perfectly

geometric — a near impossibility in Maryland — but it

is reasonably compact and cohesive given Maryland's

odd shape and the constitutional requirement of

proportionate representation. The State introduced

ample evidence from highly qualified experts

explaining that the redrawn district possessed

demographic, economic, and transportation

pg ge E.g., ECF 186-17, at 17-18. What's

, the three-judge court never tried to explain

— the new map was less’ geographically,

historically, or culturally cohesive than the prior

map, preferring to focus on the relative changes in

political-party registrations.

This was a flawed methodology because the

preexisting sixth district was no paragon of

nonpartisanship; it was instead drawn to provide a

safe seat for Republicans. If the test for

constitutionality turns on party-registration changes

10

from one map to the next, the relevant measure

should not be the total swing from one party to the

next, but the net change in competitiveness; i.e.,

whether the district is more or less competitive,

regardless of which party has the edge.

This point is readily established through numbers

furnished by plaintiffs’ expert witness, Michael P.

McDonald. In attempting to show the voter “swing” in

the redrawn sixth district, a concept credited by the

three-judge court, Dr. McDonald reported the

following statistics (correcting for trivial errors):

Benchmark [2002] Adopted [2011] Change

Number | Percent | Number | Percent | Number

Demo. 159,661 35.8% 184, 120 44.8% 24,459

Repub. 207,966 46.7 141,548 AA 6,418

No Pty 77,892 17.5% 85,535 20.8% 7,643

Total 445,519 100.0% 411,203 100.0% -H,316

Thus, Dr. McDonald and the court focused on a

swing of 90,877 party registrations (24,459 more

Democrats plus 66,418 fewer Republicans). As shown

in the table below, however, the redrawn sixth

district was more competitive than the 2002 version

when measured by the relative differences among the

two major parties.

Benchmark [2002] Adopted [2011]

Number Percent | Number | Percent

Dems Reps 48,306 “10.8% 42,572 10.4%

(Reps+NP) - Dems 126,197 28.3% 42,963 10.4%

Reps - Dems 48,305 10.8% 42,572 10.4%

(Dems+NP) - Reps 29,587 60% 128, 107 31.2%

1]

This table shows that the percentage difference

between registrations for the two major parties was

slightly less in 2011 (10.4 vs. 10.8 percent). Further,

Democrats had a smaller registered-voter advantage

in 2011 than Republicans had in 2002 (42,572 vs.

48,305). Finally, if the Republican candidate in the

redrawn district carried the nonaligned voters, the

Republican would have had a substantially greater

chance of defeating a Democrat than the other way

around under the prior map (Republicans plus No

Party outweighed Democrats by 42,963 in 2011, while

Democrats plus No Party outweighed Republicans by

only 29,587 in 2002). This type of result is not

unprecedented in Maryland, which is all the more

reason why courts should be cautious to declare

constitutional injuries by gerrymandering.

Maryland’s most conservative district, the first, is

generally a Republican stronghold. The Republican

candidate prevailed there in every election from 1990

through 2006, winning by 53, 52, and 38 points in the

elections of 2002 to 2006. See Md. State Bd. Elections,

Elections by Year, Representative in Congress

(elections of 2002 through 2006).° But in 2008, with

3 Available at

https://results.elections. maryland. gov/elections/2002/resulta/g_re

presentative_in_congress. html;

https://results. elections. maryland. gov/elections/2004/general/con

gress. html;

https://results. elections. maryland. gov/elections/2006/results/gen

eral/office_Representative_in_ Congress. htmL

12

no change in district boundaries, the Democratic

candidate won. See id. (election year 2008).*

Moreover, the redrawn sixth district was

significantly more competitive than the State as a

whole. In 2012, Democrats comprised 55.7 percent of

all registered voters in the state, versus 26.0 percent

for Republicans — a ratio of more than 2.1 to 1, and a

percentage-point spread of 29.8. See Md. State Bd.

Elections, Eligible Active Voters on Precinct Register

(as of Oct. 21, 2012).5 The redrawn sixth district, by

contrast, has a Democrat-to-Republican ratio of 1.3 to

1 and a percentage-point spread of only 10.4. By

these absolute measures, the redrawn sixth district is

substantially more competitive than Maryland as a

whole. And the sixth district proved to be the most

competitive of Maryland’s eight congressional

districts in the 2018 general election, see Md. State

Bd. Elections, Elections by Year, Representative in

Congress (election year 2018),° suggesting that the

district had returned to its historical competitiveness

under the challenged map.

4 Available at

https://results. elections. maryland. gov/elections/2008/resulta/gen

eral/gen_results_2008 4 008X.htmL

5 Available at

https://results.elections. maryland. gov/press_room/documenta/PG

12/PrecinctRegisterCounts/statewide pdf.

® Available at

https://results. elections. maryland. gov/elections/20 | 8/resulta/gen

eral/gen_results_2018 2 008X. html

13

Il. THE COURT SHOULD ENDORSE

OBJECTIVE CRITERIA THAT

ESTABLISH WHEN A REDRAWN

DISTRICT IS NOT SUBJECT TO

CONSTITUTIONAL ATTACK

The three-judge court acknowledged that the

Constitution gives authority to draw election districts

to the political branches of the state and federal

governments. JS App. 3la, 33a (citing U.S. Const.

art. I, § 2, cl. 1 & art. I, § 4, cl. 1). The court further

recognized that this Court has addressed the

constitutionality of partisan gerrymandering in a

series of cases, most arising under the Equal

Protection Clause, and has never invalidated a

district on that basis or even settled on a clear

standard for doing so. See JS App. 38a. In Amicus’s

view, the facts of this case are well within existing

Equal Protection precedents, clearly foreclosing any

relief under that clause. See, e.g., Vieth v. Jubelirer,

541 U.S. 267, 281 (2004) (plurality); Davis v.

Bandemer, 478 U.S. 109 (1986); Gaffney 412 U.S. at

752-53; League of United Latin Am. Citizens v. Perry,

548 U.S. 399, 423 (2006) (plurality) [hereafter,

“LULAC’}.

Doubtless because of these precedents, plaintiffs in

this case sought relief under the First Amendment,

and the three-judge court found in that Amendment a

test for partisan gerrymandering that is notable for

its breadth as much as for its novelty. After 50 years

of this Court’s rejecting constitutional challenges to

partisan gerrymandering, the divided three-judge

court found (through different two-judge majorities)

two justiciable violations of the First Amendment.

The tests it fashioned for proving these violations,

14

moreover, turned out to be quite easy to satisfy, and

if endorsed by this Court it would effectively nullify

longtime judicial reticence about intruding on

congressional redistricting.

Two of the three judges below (Niemeyer and

Russell, JJ) found that plaintiffs could prove a

violation of their First Amendment representational

rights by establishing (1) that the state actors drew

the map with “specific intent” to burden them

“because of how they voted or the political party with

which they were affiliated”; (2) that the redrawn

district diluted their votes “to such a degree that it

resulted in a tangible and concrete adverse effect”:

and (3) that the intent to burden was a but-for cause

of the adverse effect. JS App. 59a. The same two

judges found that plaintiffs could prove a violation of

their First Amendment associational rights by

proving the same elements, except that element (2)

required proof of a burden on the “targeted citizens’

ability to associate in furtherance of their political

beliefs and aims.” Jd. (Chief Judge Bredar concurred

in the associational-rights holding, but on somewhat

narrower grounds.)

The three-judge courts decision has some

grounding in Justice Kagan’s concurring opinion in

Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018), and in

Justice Kennedy’s earlier concurring opinion in Vieth.

See 541 U.S. at 314-16. By contrast, the plurality in

Vieth was skeptical of a First Amendment basis for

partisan gerrymandering claims, “for the very good

reason that a First Amendment claim, if it were

sustained, would render unlawful all consideration of

political affiliation in districting, just as it renders

unlawful all consideration of political affiliation in

15

hiring for non-policy-level government jobs.” Jd. at

294.

The three-judge court’s decision in this case proves

the Vieth plurality’s point. The court’s two tests for

First Amendment justiciability turned out to be very

easy to satisfy — so easy that the court granted a

permanent injunction on plaintiffs’ motion for

summary judgment, relying extensively on unreliable

hearsay. Plaintiffs might answer that the test was

satisfied because the facts were egregious, but that is

unpersuasive for two reasons. To be sure, the record

included ample evidence that some state officials

intended the sixth district to lean Democratic. But as

Appellants’ Jurisdictional Statement explains, it also

included evidence of nonpartisan intent, see JS 5-7,

and nothing in the record suggested a specific intent

not to comply with the law as articulated by this

Court. That law has been clear for decades that

extensive partisan intent in_ redistricting is

permissible, at least if the challenge is brought under

the Equal Protection clause. E.g., Gaffney, 412 U.S.

at 752-53. The three-judge court fundamentally

confused partisan intent, which is_ clearly

permissible, with unlawful intent to harm specific

voters because of their party affiliation, which was

not remotely proven.

More important, the tests fashioned by the three-

judge court are satisfied .n nea \ every case where

political actors control redis.ricting and_ the

prevailing voter registrations in the redrawn district

change from one party to the other. The intent

element of the three-judge court's test, although

ostensibly requiring a “specific intent” to burden

voters based on their prior votes or party affiliation,

16

in fact requires nothing more than proof of an intent

that the redrawn district favor one party over the

other. It might have been a different case if the three-

judge court required, for instance, proof that

redistricting officials curved an otherwise straight

boundary around the house of a specific political

opponent in retaliation for that opponent’s political

affiliation, or speech. But nothing like that happened

in this case, and as a practical matter the court’s

“specific intent” element is readily provali'e. After

that, the other two elements — causatiwn and

damages — are gimmes. A few voters testify about

their political ennui after redistricting, and the case

is over. Indeed, in this case, the court did not even

require first-hand testimony.

Nothing in this Court’s precedents, or in the three

judge courts decision, explains why partisan

gerrymandering challenges should be easier to win

under the First Amendment as compared to the

Fourteenth. The questions that have animated

jurisprudence in this area for decades are “what is

necessary to show standing in a case of this sort, and

whether those claims are justiciable.” Gill, 138 S. Ct.

at 1929. These questions are aimed at ensuring that

the judiciary respects its limited role. Jd. In Gill,

decided just last term, seven justices agreed that

“[floremost among these requirements is injury in

fact — a plaintiffs pleading and proof that he has

suffered the invasion of a legally protected interest

that is concrete and particularized, i.e., which

affect[s] the plaintiff in a personal and individual

way.” Jd. (quotation marks omitted).

The alleged First Amendment injuries in this case

were essentially identical to the injuries alleged in

17

the Equal Protection cases: dilution of the plaintiffs’

vote, or their enthusiasm to vote, because of a

perception that their party’s candidate will not win.

Despite the three-judge court’s attempt to frame the

plaintiffs’ injury as personal, partisan

gerrymandering cases are by nature impersonal. If

the intent is to “flip” a district, as the three-judge

court believed, the target is the district as a whole,

not any individual voter.

This Court may not want to declare a broad rule

equating the justiciability standard for partisan

gerrymandering challenges under the First and

Fourteenth amendments. As noted, for instance, the

First Amendment might provide relief if map-makers

specifically re-districted a political opponent who

criticized the re-districters. But that is not remotely

what happened in this case.

Instead, Amicus suggests that the Court proceed

cautiously, as it has done for decades in this area, by

holding that any number of objective principles

preclude relief in this case and others like it, whether

the claim is under the First or Fourteenth

Amendments. Those principles are set forth in the

next section.

Ill. BY REASONABLE OBJECTIVE

MEASURES, MARYLAND’S REDRAWN

SIXTH DISTRICT IS NOT SUBJECT TO

CONSTITUTIONAL ATTACK FOR

PARTISAN GERRYMANDERING

The Court should reverse the judgment below

because at least five objective and undisputed facts

should put this case beyond the reach of

constitutional challenge. A decision on these grounds

18

would not foreclose all challenges to partisan

gerrymandering under the First or Fourteenth

Amendments, but it would establish clear safe

harbors for map-makers that accommodate

competing constitutional principles: namely, that the

Constitution commits re-districting authority to

political actors and does not prohibit partisanship in

the process, yet also affords each citizen a right to

cast a vote that counts as much as any other citizen’s

vote. It will also permit Congress to fashion a

national solution to partisan gerrymandering that

will possess a political legitimacy that can come only

from federal legislation.

First, the Court should hold that a redrawn district

that is reasonably compact and cohesive is not subject

to a collective gerrymandering challenge even if the

redrawn map was intended to, and does, change the

district’s prevailing party affiliation. Permitting such

challenges would unreasonably intrude on state

officials’ constitutional power to draw congressional

election districts, and to consider partisan interests

as they do so. See, e.g., Gaffney, 412 U.S. at 754

(neither we nor the district courts have a

constitutional warrant to invalidate a state plan,

otherwise within tolerable population limits, because

it undertakes, not to minimize or eliminate the

political strength of any group or party, but to

recognize it and, through districting, provide a rough

sort of proportional representation in the legislative

halls of the State”). Whatever limits the Constitution

imposes on partisan gerrymandering, they cannot be

crossed if the new district has reasonable geographic

and cultural cohesion.

19

Second, the Court should hold that a redrawn

district is not subject to a collective gerrymandering

challenge if the map is more compact and cohesive

than its predecessor. The ne plus ultra of nonpartisan

districting is probably a geometric grid transposed

over a state map with lines adjusted as little as

possible to ensure equal populations per district.

Perfect nonpartisanship may be impossible but

movement in that direction should not be subject to

punishment. Absent evideace that map-makers

specifically targeted individual voters in violation of

their constitutional rights, a district that becomes

more compact and cohesive than its predecessor

cannot give rise to a “concrete and individualized”

injury, even if the district “flips” as a whole.

Third, the judiciary should not adjudicate partisan

gerrymandering claims if the redrawn district is

reasonably competitive as measured by the

percentage split in party registrations. If a district is

politically competitive, there can be no injury of a

constitutional dimension regardless of the map-

makers’ intent.

Fourth, partisan gerrymandering claims should

not be justiciable if the redrawn district is more

competitive than the prior district, as measured by

the percentage split in party registrations. Again,

State officials should not be discouraged from making

a district less partisan, even if the result is not

perfect.

Finally, partisan gerrymandering claims should

not be justiciable if the redrawn district is more

competitive than the State as a whole. See Gaffney,

412 U.S. at 754 (judicial interest should be at its

lowest ebb when a State purports fairly to allocate

20

political power to the parties in accordance with their

voting strength and, within quite tolerable limits,

succeeds in doing so”); LULAC, 548 U.S. at 419

(Kennedy, J.) (‘a congressional plan that more closely

reflects the distribution of state party power seems a

less likely vehicle for partisan discrimination than

one that entrenches an electoral minority”). In that

instance, no individual citizen in the redrawn district

can possibly establish the type of concrete and

individualized injury required for justiciability. Every

citizen in the redrawn district who could claim an

injury of any kind is by definition in a more favorable

position than he or she has a right to expect.

As set forth above in Part I, the record in this case

establishes each of these criteria. The second, fourth,

and fifth items are essentially incontrovertible and

are easily applied in other cases. The first and third

require some judgment in individual cases, including

this one, but they are amply supported by the record

in this case. In any event, the five criteria considered

as a whole should establish beyond question that the

three-judge court’s sweeping decision in this case

should be reversed.

eee

The three-judge court’s evident exasperation with

partisan gerrymandering may have impelled it to find

a judicial solution. See, e.g., JS App. 67a (Bredar,

C.J., concurring) (“Partisan gerrymandering is

noxious, a cancer on our democracy.”). Amicus

himself is no fan of partisan gerrymandering, but

that does not mean it is a terminal disease, much less

one that the judiciary can or should cure. The

district-by-district resolutions that would come from

judicial review of partisan gerrymandering claims

21

can only mire the courts in partisan politics. Were

this Court to invalidate a Democratic district in a

strongly Democratic state like Maryland, Democrats

nationwide would cry foul, and rightly question why

Republican gerrymanders in Republican-controlled

states are not subject to the same scrutiny.’

The absence of a broad-based judicial solution

does not consign the republic to live with partisan

gerrymandering. On the contrary, the Constitution

gives Congress secondary authority to “make or alter”

ee a

Places and Manner of holding Elections ...

Representatives.” U.S. Const. art. I, § 4; a

Federalist No. 59 (A. Hamilton). Congress's power

almost certainly includes the ability to curtail or

eliminate partisan gerrymandering at the national

’ Plaintiffs and the three-judge court's insistence that

gerrymandering is anti-democratic is true in theory, but not

is a complete absence of partisan gerrymandering (and he would

readily support nationwide legislation that accomplishes that

goal). But if some partisan gerrymandering is permitted (or

occurs even if not permitted), democracy is hindered, not helped,

when one party engages in it and the other does not. Congress is

a national legislature; a single state's delegation achieves

the electorate as a whole. This is why a national legislative

solution is so critical Judicial solutions will always have

problems of timing (because gerrymandering challenges wil! not

be decided in all districts at the same time), as well as precision

(because courts cannot legislate clear anti-gerrymandering

rules, but can only fashion standards as derived from broad

Constitutional text).

22

level, see Vieth, 541 U.S. at 276-77; Davis, 478 U.S. at

143-44 (Burger, C.J., concurring), and Congress has

often considered bills that would fashion a

nationwide solution. E.g., Citizen Legislature Anti-

Corruption Reform Act, H.R. 145, 115 Cong., § 5 (1*

Sess. 2017) (‘Each State shall conduct Congressional!

redistricting (beginning with the redistricting carried

out pursuant to the decennial census conducted

during 2020) in accordance with a redistricting plan

developed by a nonpartisan independent redistricting

commission.”). A decision by this Court endorsing the

three-judge court’s judgment and rationale will

undermine decades of precedent and disrupt settled

expectations about what is permissible’ in

redistricting. The elimination of partisan

gerrymandering is a desirable goal, but only Congress

can ensure that the remedy applies uniformly

throughout the Nation.

CONCLUSION

For the reasons stated, the Court should note

probable jurisdiction and reverse the judgment below.

Respectfully submitted,

WILLIAM J. MURPHY

Counsel of Record

JOHN J. CONNOLLY

ZUCKERMAN SPAEDER LLP

100 E. Pratt St., Suite 2440

Baltimore, Maryland 21202

410 332 0444

wmurphy@zuckerman.com

Counsel for Amicus