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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0866%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0866%3A05. Public record. Not legal advice.