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

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Nos. 18-422, 18-726

IN THE

Supreme Court of the Anited States

ROBERT A. RUCHO, ET AL.,

Appellants,

Vv.

COMMON CAUSE, ET AL.,

Appellees.

LINDA H. LAMONE, ET AL.,

Appellants,

QO. JOHN BENISEK, ET AL.,

Appellees.

On Appeals from the United States

District Courts for the Middle District of

North Carolina and the District of Maryland

BRIEF OF PROFESSOR MICHAEL KANG AS

AMICUS CURIAE IN SUPPORT OF APPELLEES

JAMES P. ROUHANDEH

Counsel of Record

DAVID B. TOSCANO

THOMAS DEC

AMANDA RAE SCHWARZENBART

DAVIS POLK & WARDWELL LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

rouhandeh@davispolk.com

Counsel for Amicus Curiae

March 8, 2019

TABLE OF CONTENTS

Page

TABLE OF AUTHORITITEG.............c0c-s0c0s-seseceseseseneneneveee iii

INTEREST OF AMICUS CURIA B ooo..0..0.ccccccccccoeseneeeeenee 1

SUMMARY OF ARGUMENT .....000.0.0.....00.0000000 —

ARGUMENT 5

Il.

THE SOLE PURSUIT OF PARTISAN

ADVANTAGE IS NOT A LEGITIMATE

BASIS FOR REDISTRICTING

A. There is agreement that “excessive”

partisanship is not a legitimate basis

REDISTRICTING SOLELY TO

ACHIEVE A PARTISAN ADVANTAGE

IS INCONSISTENT WITH THE

LONGSTANDING CONSTITUTIONAL

NORM AGAINST GOVERNMENT

PARTISANSHIP AS A LEGITIMATE

GOVERNMENT ACTIVITY

A. The Court’s First Amendment

C. The Court’s§ Elections Clause

[IIl. REQUIRING THE GOVERNMENT TO

ESTABLISH THAT THE PARTISAN

EFFECTS OF REDISTRICTING WERE

THE INCIDENTAL RESULT OF ITS

PURSUIT OF LEGITIMATE STATE

INTERESTS WOULD PROVIDE A

CLEAR AND ADMINISTRABLE

STANDARD AND A MEANINGFUL

CHECK ON ILLEGITIMATE

PARTISAN GERRYMANDERING................

A. A constitutional standard based on a

requirement that an acceptable plan

be designed to further legitimate

“tate interests would provide a

- t decisions in a legitimate

for well-established

TABLE OF AUTHORITIES

CASES

Ariz. State Leg. v. Ariz. Indep.

Redistricting Comm'n,

135 S. Ct. 2652 (2015)

PAGE(S)

Bandemer v. Davis,

608 F. Supp. 1479 (S.D. Ind. 1984),

rev'd, 478 U.S. 109 (1986)

Benisek v. Lamone,

348 F. Supp. 3d 493 (D. Md. 2018)...................... 12, 15

Benisek v. Lamone,

266 F. Supp. 3d 799 (D. Md. 2017),

aff'd, 138 S. Ct. 1942 (2018)

Brown v. Thomson,

462 U.S. 835 (1983)

Bush v. Gore,

531 U.S. 98 (2000)

Clingman v. Beaver,

544 U.S. 581 (2005)

Common Cause v. Rucho,

318 F. Supp. 3d 777 (M.D.N.C. 2018).............. passim

Cook v. Gralike,

531 U.S. 510 (2001)

Cooper v. Harris,

137 S. Ct. 1455 (2017)

18, 19, 20

Coz v. Larios,

542 U.S. 947 (2004)

Davis v. Bandemer,

478 U.S. 109 (1986)

5, 17, 18, 24

6-7, 24

Easley v. Cromartie,

U.S. 234 (2001) 11,19

Elrod v. Burns,

427 U.S. 347 (1976) 13, 14, 15

Gaffney v. Cummings,

412 U.S. 735 (1973) 9, 10, 11

Gill v. Whitford,

138 S. Ct. 1916 (2018) 25

Goosby v. Osser,

409 U.S. 512 (1973) 15

Harris v. Ariz. Indep. Redistricting Comm'n,

136 S. Ct. 1301 (2016) 2, 11, 17, 24

Hulme v. Madison County,

188 F.. Supp. 2d 1041 (S.D. TIL 2001) 28

Karcher v. Daggett,

462 U.S. 725 (1983) 17

Kusper v. Pontikes,

TTT ons tsesosneteneinsiseaninennntetdinmnnatnines 21, 22

Larios v. Coz,

300 F.. Supp. 2d 1320 (N.D. Ga. 2004),

aff'd, 5A2 U.S. 947 (2004) 18

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) 3, 11, 12, 26

McCutcheon v. FEC,

572 U.S. 185 (2014) _ - 4

Miller v. Johnson,

aided tnertmansensnsientbenemninion 9,19

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (196A) .........cccccccceeeeeeees 13

Obama for Am. v. Husted,

888 F. Supp. 2d 897 (S._D. Ohio 2012)

Romer v. Evans,

517 US. (1996)

16, 23

Shapiro v. McManus,

136 S. Ct. 450 (2015)

14, 15

Shaw v. Reno,

9, 28

509 U.S. 630 (1993)

Tashjian v. Republican Party of Conn.,

479 U.S. 208 (1986)

Trump v. Hawaii,

138 S. Ct. 2392 (2018)

13, 15, 16

USDA »v. Moreno,

413 U.S. (1973)

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995)

Vieth v. Jubelirer,

541 U.S. 267 (2004)

Vill of Arlington Heights v.

Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977)

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943)

Washington v. Davis,

426 US. (1976)

Whitford v. Gill,

218 F. Supp. 3d 887 (WD. Wis. 2016),

vacated and remanded, 138 S. Ct. 1916 (2018) ... 24, 25

STATUTES, RULES, AND REGULATIONS

U.S. Const. amend. I passim

U.S. Const. amend. XTV passim

U.S. Const. amend. XTV, § 1 16

8 ee passim

OTHER AUTHORITIES

Brief for Appellee Common Cause,

Rucho v. Common Cause, No. 18-422 ...............c000+- 4

Brief for Appellee League of Women Votes,

Rucho v. Common Cause, No. 18-422 4

Brief for Appellees, Lamone v. Benisek, No. 18-726 ....4

Bruce E. Cain & Emily R. Zhang, Blurred Lines:

Conjoined Polarization and Voting Rights,

TU Cie BE. Tad, GU Ga ceccccsccszcscsccccccccesccscsscssesees 19

John Hoeffel, Siz Incumbents Are a

Week Away from Easy Election,

Winston-Salem J. (Jan. 27, 1988) ..............ccccccceeeseee 28

Michael Kang, Gerrymandering and the

Norm Against Government Partisanship,

116 Mich. L. Rev. 351 (2017) ................cccceeceeseeseeseeeees 1

Eric McGhee, Measuring Partisan Bias in

Single-Member District Electoral Systems,

39 Legis. Stud. Q. 55 (2014) 0.0.2... .cccccceeceeeceeceeeeeeee 25

Richard Pildes. The Constitutionalizati

of Democratic Politics,

118 Harv. L. Rev. 29 (2004) 28

Mackenzie Weinger, “Pa Pol: Voter [ID Helps GOP Win

State,” Politico (June 25, 2012) 26-27

INTEREST OF AMICUS CURIAE'

Amicus curiae Michael S. Kang is the William G.

and Virginia K. Karnes Research Professor at North-

western Pritzker School of Law and a nationally recog-

nized expert on redistricting and election law.’ Professor

Kang holds a J.D. from the University of Chicago School

of Law and a Ph.D. in Government from Harvard Uni-

versity.

Professor Kang was recognized for the Best Elec-

tion Law Article of 2017 by the Association of American

Law Schools Section on Election Law. See Gerrymander-

ing and the Norm Against Government Partisanship,

116 Mich. L. Rev. 351 (2017). In the article, Professor

Kang argues that legislative redistricting, like all law-

making, must be supported by a legitimate government

purpose; and that because the pursuit of partisan ad-

vantage is not a legitimate government purpose, a redis-

tricting plan that has partisan effects that result solely

from partisanship should be rejected as unconstitutional.

Professor Kang believes that consideration of his

thesis would assist the Court in resolving the issues pre-

sented by these appeals.

' Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part, and that no person oth-

er than amicus and his counsel made any monetary contribution to

its preparation or submission. The parties’ letters consenting to the

filing of amicus curiae briefs have been filed with the Clerk’s office.

* The views expressed herein are Professor Kang’s a)-ne and

do not represent the views of Northwestern Pritzker School uf Law.

SUMMARY OF ARGUMENT

Professor Kang submits that, consistent with well-

established constitutional norms, the partisan effects of a

redistricting plan must result from the mapmakers’ pur-

suit of legitimate government interests, and not solely

from their pursuit of a partisan advantage favoring one

party over another. Courts should therefore reject a plan

as unconstitutional if its partisan effects do not arise from

legitimate government objectives. Under this simple

standard, courts would not need an exact measure of a

plan’s partisan effects. The proposed standard would, as

a result, be “clear, manageable, and politically neutral.”

Vieth v. Jubelirer, 541 U.S. 267, 307-08 (2004) (Kennedy,

J., concurring in the judgment).

No Justice of this Court has ever opined that an

excessively partisan redrawing of congressional districts

is constitutional. See, eg., Vieth, 541 U.S. at 292-93

(Sealia, J., plurality opinion); id. at 325 (Stevens, J., dis-

senting); see also Harris v. Ariz. Indep. Redistricting

Comm'n, 136 S. Ct. 1301, 1306, 1310 (2016); Ariz. State

Leg. v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct.

2652, 2658 (2015). But seeking to fashion an objective

constitutional standard based on whether the partisan

effect of a particular redistricting plan is “excessive” has

understandably vexed the courts because of the difficul-

ties of measurement. “Excessiveness is not easily deter-

mined.” Vieth, 541 U.S. at 316 (Kennedy, J., concurring

in the judgment). By comparison, a standard requiring a

showing that the plan was drawn to achieve legitimate

government objectives would, as in the “one person, one

vote” and Elections Clause cs, be far easier to apply.

As Justice Stevens has said, “any decision to re-

draw district boundaries—like any other state action

that affects the electoral process—must, at the very least,

serve some legitimate government purpose” beyond “a

purely partisan desire.” League of United Latin Am. Cit-

izens v. Perry, 548 U.S. 399, 448 (2006) (“LULAC”) (Ste-

vens, J., concurring in part and dissenting in part) (em-

phasis added). The legitimate government interest

standard is familiar to this Court and the lower courts. A

decision to endorse that standard here would align the

standard for partisan gerrymandering cases with the

Court’s prior decisions under the First Amendment, the

Fourteenth Amendment, and the Elections Clause (U.S.

Const. art. I, § 4). There is no reason for the standards to

be different.

This Court’s “one person, one vote” and Elections

might consider partisan advantage in drawing a district

map does not imply that seeking to disadvantage another

political party is a legitimate basis for delineating dis-

tricts. The acknowledgement that legislatures are parti-

san bodies is a far cry from holding that they may rely on

pure partisanship as a legitimate basis for their decisions.

See Trump v. Hawaii, 138 S. Ct. 2392, 2421 (2018) (“On

the few occasions where [the Court has struck down a

policy as illegitimate under rational basis scrutiny], a

common thread has been that the laws at issue lack any

purpose other than a bare desire to harm a politically un-

popular group.”) (quotation omitted); see also McCutch-

eon v. FEC, 572 U.S. 185, 192 (2014) (plurality opinion)

(“{T}hose who govern should be the last people to help

decide who should govern.”).

The unfortunate and unintended effect of not re-

jecting outright redistricting with a purely partisan pur-

pose has been to encourage redistricting plans that are

openly designed to put voters favoring a particular party

at a disadvantage. That, in turn, has generated numerous

challenges to redistricting plans that avowedly seek par-

tisan advantage and has led to more frequent review of

those plans by this Court. By adopting a purpose-based

standard for political gerrymandering, the Court would

strongly discourage the growing practice of public offi-

cials openly engaging in the partisan redrawing of dis-

trict lines—thus abating a practice that undermines the

perception and reality of free and fair elections and less-

ening, if not eliminating, the need for challenges to that

practice.

In each of the cases now before the Court, the re-

districting plans were designed with an avowedly parti-

san purpose, and cannot be considered to be the product

of legitimate state interests. They present quintessential

examples of undiluted partisanship, with clear evidence

of a pure partisan purpose in drawing the district lines.

See Brief for Appellee Common Cause at 7-19, 41, Rucho

v. Common Cause, No. 18-422; Brief for Appellee League

of Women Voters at 6-8 Rucho v. Common Cause, No.

18-422; Brief for Appellees at 4-10, 51, Lamone v.

Benisek, No. 18-726. They, therefore, cannot be sustained

under a purpose-based test of constitutionality.

ARGUMENT

L THE SOLE PURSUIT OF PARTISAN

ADVANTAGE IS NOT A LEGITIMATE

BASIS FOR REDISTRICTING

Under this Court’s redistricting case law, the pure

pursuit of party primacy is an illegitimate basis for law-

making. As Justice Kennedy wrote in Vieth: “If a State

passed an enactment that declared ‘All future appor-

tionment shall be drawn so as most to burden Party X’s

rights to fair and effective representation . . .’ we would

surely conclude the Constitution had been violated.” 541

U.S. at 312 (Kennedy, J., concurring in the judgment).

In his plurality opinion in Vieth, Justice Scalia

agreed that “an excessive injection of politics [in redis-

tricting] is unlawful.” 541 U.S. at 293. He also observed

that, in seeking to advance legitimate lawmaking inter-

ests, the government is entitled to weigh political consid-

erations in redistricting, including potential partisan im-

plications. That observation is not—and should not be

allowed to become—a sanction for government officials to

pursue an electoral edge for one party at the expense of

another. As Justice Stevens observed in Vieth, there had

not previously been “the slightest intimation in any opin-

ion written by any Member of [the] Court that a naked

purpose to disadvantage a political minority would pro-

vide a rational basis for drawing a district line.” Vieth,

541 U.S. at 336-37 (Stevens, J., dissenting).*

* In Coz v. Larios, Justice Scalia over-appraised the support

in Vieth for accepting “polities as usual” as a “traditional” criterion

that is constitutional if not taken too far. 542 US. 947, 962 (2004)

(Scalia, J., dissenting); see Vieth, 541 U.S. at 316 (Kennedy, J., con-

(....continued)

Amicus submits that a standard requiring that le-

gitimate government interests support redistricting

plans is “clear, manageable, and politically neutral.” Vi-

eth, 541 U.S. at 307-08 (Kennedy, J., concurring in the

judgment). Recent lower court decisions in this and other

cases demonstrate the manageability of applying such a

purpose-focused standard to partisan gerrymandering.

Tracking Justice Kennedy’s opinion in Vieth, these deci-

sions have inquired “not whether political classifications

were used” or how excessive the partisan advantage is,

but instead whether the government acted with only the

impermissible “purpose . . . of imposing burdens on a

disfavored party and its voters.” Jd. at 315.

A. There is agreement that “excessive” par-

tisanship is not a legitimate basis for re-

districting.

Although the Court has struggled to articulate a

standard of constitutionality for partisan gerrymander-

ing, no member of this Court has opined that the Consti-

tution tolerates excessively partisan redrawing of con-

gressional districts. Where, as here, district lines can be

explained only by a partisan purpose, the plans should be

deelared unconstitutional.

This Court first addressed the constitutionality of

partisan gerrymandering in Davis v. Bandemer, 478 US.

(continued... .)

curring in the judgment) (“I do not understand the plurality to con-

clude that partisan gerrymandering that disfavors one party is per-

missible.”); id. at 351 (Souter, J., dissenting) (proposing that after a

plaintiff shows a departure from “traditional districting principles,”

the defendants must show that “legitimate objectives” other than

“naked partisan advantage” justify the redistricting).

109 (1986), when it accepted that the issue is justiciable

but articulated an effects-focused standard that so far

has not been met. In Bandemer, the Court considered an

equal protection challenge to the 1981 decennial redis-

tricting of the Indiana state legislature. The district court

had found that the Republican-majority legislature drew

districts with “simply no conceivable justification” other

than “protecting its incumbents and creating every pos-

sible ‘safe’ Republican district possible.” Bandemer v.

Davis, 603 F. Supp. 1479, 1487-88 (S.D. Ind. 1984), rev'd,

478 U.S. 109 (1986). Nonetheless, a plurality of the Court

reasoned that in order to succeed, the plaintiffs needed to

prove discriminatory effect by showing that “the elec-

ar we mews te apt Pemeg cor a itn Some

ly degrade a voter’s or a group of voters’ influence on the

political process as a whole.” Bandemer, 478 U.S. at 132

(plurality opinion). The result was to preserve a district

map that avowedly served the partisan purpose of keep-

ing a political party in control, which intentionally bur-

dened voting rights. The decision cast doubt on the fair-

ness of the electoral process.

Returning to the question eighteen years later in

Vieth, the Court again held that partisan gerrymander-

ing cases are justiciable,* but rejected the Bandemer dis-

criminatory effects standard without articulating a new

standard. In Vieth, the fractured Court put forward

three distinct constitutional rationales and no controlling

legal standard. Justice Scalia, writing for a four-member

plurality, opined that partisan gerrymandering cases are

nonjusticiable despite “the incompatibility of severe par-

* See 541 U.S. at 309-10 (Kennedy, J., concurring); id. at 317

(Stevens, J., dissenting) (“[F Jive Members of the Court are con-

vineed” that “political gerrymandering claims are justiciable.”).

lawful” in legislative districting. Vieth, 541 U.S. at 292-93

(plurality opinion). Justice Kennedy, in a concurring

opinion, wrote that “[bjecause there are yet no agreed

upon substantive principles of fairness in districting, we

have no basis on which to define clear, manageable, and

politically neutral standards for identifying unconstitu-

tional partisan gerrymandering.” /d. at 307-08 (Kennedy,

J., concurring in the judgment). Justice Stevens, in his

dissenting opinion, denied that “a naked purpose to dis-

advantage a political minority would provide a rational

basis” for a redistricting plan. Jd. at 336-37 (Stevens, J.,

dissenting). In his view, the appropriate constitutional

question was “whether the legislature allowed partisan

considerations to dominate and control the lines drawn,

forsaking all neutral principles.” /d. at 339.

The Vieth plurality opinion, while not controlling,

has nevertheless guided subsequent discourse on the

question of whether partisan motivation could constitute

a lawful basis for a redistricting plan. The plurality ob-

served that legislative redistricting is contemplated in

the Constitution. See U.S. Const. art. I, § 4 (“The Times,

Places and Manner of holding Elections for Senators and

Representatives, shall be prescribed in each State by the

Legislature thereof . . . .”). Because partisan redistricting

had a place in American politics since the colonial period,

the plurality concluded that “partisan districting is a law-

ful and common practice.” Vieth, 541 U.S. at 286 (plurali-

ty opinion). In their view, although “excessive” partisan-

ship was unlawful, the question was not justiciable be-

cause it was impossible to craft a workable standard to

assess “[hlow much political motivation and effect is too

much.” Jd. at 297 (plurality opinion). Had the focus in-

stead been on the illegitimate purpose of the legislation,

there would have been no such problem.

Importantly, the plurality opinion in Vieth did not

identify any prior case law expressing constitutional ap-

proval for partisan motivations as legitimate reasons for

the drawing of district lines. Rather it cited cases which

recognized that, as a practical matter, partisan concerns

were commonly considered in redistricting, and which

passed no judgment on whether such considerations

could be a legitimate government interest or a lawful ba-

sis for government action absent additional nonpartisan

considerations. See 5A1 U.S. at 285-86 (plurality opinion)

(citing Miller v. Johnson, 515 U.S. 900, 914 (1995)

(“(Rledistricting in most cases will implicate a political

calculus in which various interests compete for recogni-

tion.”); Shaw v. Reno, 509 U.S. 630, 662 (1993) (White, J.,

dissenting) (“{D]istricting inevitably is the expression of

interest group politics.”); Gaffney v. Cummings, 412 U.S.

735, 753 (1973) (“The reality is that districting inevitably

has and is intended to have substantial political conse-

quences.”). Nevertheless, the Vieth plurality cited those

cases as support for the conclusion that seeking partisan

advantage could be a legitimate basis for a redistricting

plan, so long as the partisan purpose and effect were not

“excessive.” 541 U.S. at 293.

In Vieth, Justice Kennedy accepted that the ex-

cessiveness of a partisan gerrymander could be part of an

undefined constitutional standard, and held open the pos-

sibility that criteria for a “clear, manageable, and politi-

cally neutral” constitutional standard could be developed

in the future. 541 U.S. at 307-08 (Kennedy, J., concurring

in the judgment). But he also cautioned against “adopting

a standard that turns on whether the partisan interests

in the redistricting process were excessive,” because

“le |xcessiveness is not easily determined.” /d. at 316. He

suggested that the proper inquiry might instead be pur-

pose-directed, assessing under the First Amendment

whether “political classifications were used to burden a

group’s representational rights.” Jd. at 315. He observed

that “(ilf a State passed an enactment that declared ‘All

future apportionment shall be drawn so as most to bur-

den Party X’s rights to fair and effective representation

. . .” we would surely conclude the Constitution had been

violated.” Jd. at 312.

There is, of course, a significant difference be-

tween taking into account political considerations and

pursuing party primacy. The Court has long recognized

the practical reality that legislatures are partisan bodies

and thus aware of the political aspects of redistricting.

See, e.g., Gaffney, 412 U.S. at 752-53 (“It would be idle

. . . to contend that any political consideration taken into

account in fashioning a reapportionment plan is sufficient

to invalidate it. . . . [I}t requires no special genius to rec-

ognize the political consequences of drawing a district

line along one street rather than another.”).

Recognizing that legislatures are partisan bodies,

however, falls far short of supporting the conclusion that

pure partisanship is a legitimate basis for drawing dis-

trict lines. The Court’s approval of legislative considera-

tion of partisan concerns in redistricting has been limited

to circumstances in which mapmakers were, at least os-

tensibly, seeking to achieve fairness between the political

parties. In Gaffney, for example, the Court held that a

state does not violate the Constitution by attempting “to

create a districting plan that would achieve a rough ap-

proximation of the statewide political strengths of the

Democratic and Republican parties.” Jd. at 752. The

employed to minimize or cancel out the voting strength of

racial or political elements of the voting population,” an

action that the Court labeled “invidiously discriminato-

ry.” Jd. at 751 (emphasis added); see also Harris, 136 S.

Ct. at 1306 (citing Gaffney for the proposition that “a

state interest in maintaining the competitive balance

among political parties” is a “legitimate” state interest in

redistricting); Hasley v. Cromartie, 532 U.S. 234, 253

(2001) (approving the use of partisan considerations in a

remedial redistricting plan that sought to render each

party’s share of the state’s congressional delegation pro-

portional to its share of the statewide vote in the most

recent congressional election).

B. Identifying partisan advantage as an ille-

gitimate basis for redistricting would ad-

dress the concerns expressed in Vieth.

Dissents by Justice Stevens and Justice Breyer in

Vieth and LULAC articulate a standard that addresses

the concerns originally framed by Justice Kennedy in

Vieth. That standard, which asks “whether the legisla-

ture allowed partisan considerations to dominate and

control the lines drawn, forsaking all neutral principles,”

Vieth, 541 U.S. at 336-39 (Stevens, J., dissenting), is

“clear, manageable, and politically neutral” and does not

turn “on whether the partisan interests in the redistrict-

ing process were excessive,” id. at 307-08, 316 (Kennedy,

J., concurring in the judgment).

Applying that same test in his dissent in LULAC,

Justice Stevens, joined in relevant part by Justice

Breyer, expressed the view that, because the redistrict-

ing had the “sole purpose of advantaging Republicans

and disadvantaging Democrats,” the state had failed its

“constitutional requirement that state action must be

supported by a legitimate state interest.” LULAC, 548

U.S. at 462-68 (Stevens, J., concurring in part and dis-

senting in part). He cited the overwhelming evidence of

purely partisan motivations for the 2003 Texas redistrict-

ing plan in concluding that “it is perfectly clear that judi-

pr aperieinci cars 0s tin! acre «tyme

its of a statewide challenge to a political gerrymander.”

Id. at 447.

The decisions below demonstrate that a purpose-

based standard is manageable. Building on Justice Ste-

vens’s and Justice Breyer’s standard in Vieth and

LULAC, the panels below reasoned that a core constitu-

tional inquiry in partisan gerrymandering cases should

be whether plaintiffs can demonstrate that the illegiti-

mate purpose of partisan advantage—as opposed to any

legitimate state interests—resulted in the partisan ef-

fects of the redistricting plan at issue. See, eg., Common

Cause v. Rucho, 318 F. Supp. 3d 777, 923 (M.D.N.C.

2018) (finding that “the dilution of . . . votes is not at-

tributable to the State’s political geography or other le-

gitimate redistricting considerations”); Benisek v. La-

mone, 348 F. Supp. 3d 498, 520 (D. Md. 2018) (finding

that no “legitimate redistricting goa[l] . . . explains the

dramatic exchange of populations between the Sixth and

Eighth Districts”).

Il. REDISTRICTING SOLELY TO ACHIEVE A

PARTISAN ADVANTAGE IS INCONSISTENT

WITH THE LONGSTANDING

CONSTITUTIONAL NORM AGAINST

GOVERNMENT PARTISANSHIP AS A

LEGITIMATE GOVERNMENT ACTIVITY

Redistricting for the purpose of achieving partisan

advantage is squarely at odds with the Court’s holdings

in related areas of constitutional law that partisanship

cannot be a legitimate government purpose. As reflected

in Gis Comte Piet Amenduant, Fourteenth Amend-

ment, and Elections Clause jurisprudence, constitutional-

tar chant ast tenn eoieiedie an: the Gaen of tein o>

sulting from partisanship, but rather upon the fact that

disadvantaging another party was the sole basis for a

map’s design. These cases reflect an overarching consti-

tutional norm against government action to seek partisan

should be the same standard as in these other related ar-

eas of the law.

A. The Court’s First Amendment decisions

support the norm that government action

solely for partisan advantage is

illegitimate.

When the government designs an electoral map

for the sole purpose of attaining primacy for a political

party, the government is intentionally burdening the core

First Amendment rights of citizens with competing polit-

ical beliefs and associations. That does not further legiti-

mate state interests. “[PJolitical belief and association

constitute the core of those activities protected by the

First Amendment.” Elrod v. Burns, 427 U.S. 347, 356

(1976) (plurality opinion); see also Tashjian v. Republi-

can Party of Conn., 479 U.S. 208, 214 (1986); N.Y. Times

Co. v. Sullivan, 376 U.S. 254, 270-71 (1964); W. Va. State

Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

In Vieth, Justice Kennedy explained partisan ger-

rymandering implicates “the First Amendment interest

of not burdening or penalizing citizens because of their

participation in the electoral process, their voting history,

their association with a political party, or their expression

of political views.” Vieth, 541 U.S. at 314 (Kennedy, J.,

concurring in the judgment) (citing Elrod, 427 U.S. 347

(plurality opinion)). He explained that a First Amend-

ment inquiry would focus on “whether political classifica-

tions were used to burden a group’s representational

rights.” Jd. at 315. In his dissent in Vieth, Justice Stevens

also suggested a First Amendment analysis: “[ Political

belief and association constitute the core of those activi-

ties protected by the First Amendment’. . . . It follows

that political affiliation is not an appropriate standard for

excluding voters from a congressional district.” /d at

324-25 (Stevens, J., dissenting) (quoting Elrod, 427 U.S.

at 356 (plurality opinion)).

Justice Kennedy's reasoning came before the

Court in Shapiro v. McManus, 136 S. Ct. 450 (2015),

which is a prior decision in the case that is now captioned

Lamone v. Benisek, No. 18-726. The plaintiffs had as-

serted a First Amendment partisan gerrymandering

claim based on Justice Kennedy’s concurrence in Vieth.

The claim invoked Justice Kennedy’s reasoning that “if ‘a

State did impose burdens and restrictions on groups or

persons by reason of their views, there would likely be a

First Amendment violation,” and that “[wjhere it is al-

leged that a gerrymander had the purpose and effect of

imposing burdens on a disfavored party and its voters,

the First Amendment may offer a sounder and more

prudential basis for intervention . -” 136 S. Ct. at 456

(quoting Vieth, 541 U.S. at 315). This Court reversed the

dismissal of the claim by a single district judge because

he failed to refer the claim to a three-judge panel. See id.

Because Justice Kennedy’s legal theory was “uncontra-

dicted by the majority in any of [the Court’s] cases,” the

claim invoking it was not “constitutionally insubstan-

tial,” and should have been referred to a three-judge

panel. Jd. (quoting Goosby v. Osser, 409 U.S. 512, 518

(1973)). On remand, the three-judge panel appropriately

adopted a standard reflecting the longstanding First

Amendment norm prohibiting a partisan purpose for

state action absent a legitimate state interest. See

Benisek, 348 F. Supp. 3d at 520 (holding that “the intent

to flip party control” was an “illegitimate” basis for redis-

tricting); Benisek v. Lamone, 266 F. Supp. 3d 799, 801-02

(D. Md. 2017). That panel’s judgment is now before this

Court.

The decisions below in Benisek are consistent with

the longstanding norm against government action for

partisan advantage under the First Amendment, as

adopted in the Court’s government patronage cases. The

patronage decisions uniformly reject government em-

ployment actions taken because of partisanship, which

the Court found to be an illegitimate government pur-

pose, rather than on legitimate hiring criteria. The plu-

rality in Elrod explained that by conditioning employ-

ment on party affiliation, patronage burdens political be-

lief under the First Amendment and, more broadly,

harms the democratic process. Elrod, 427 U.S. at 355-56

(plurality opinion).

This longstanding norm also appears elsewhere in

the Court’s First Amendment jurisprudence, particularly

where one political party exercises control of state gov-

ernment to disadvantage an opposing political party. In

Tashjian, the Connecticut Democratic Party used its

control of state government to force the Republican Par-

ty into acquiescing to a primary election law over the

party’s objection. The Court held that the law was un-

constitutional, since it burdened the associational inter-

ests of the Republican Party and its members, and rec-

ognized that “the views of the State . . . to some extent

represent the views of one political party transiently en-

joying majority power.” 479 U.S. at 224; see also Cling-

man v. Beaver, 544 U.S. 581, 608 (2005) (O’Connor, J.,

concurring) (“{I}t must be recognized that [the State] is

not a wholly independent or neutral arbiter. Rather, the

State is itself controlled by the political party or parties

in power, which presumably have an incentive to shape

the rules of the electoral game to their own benefit.”).

Here, where representatives of one political party use the

state government’s redistricting authority solely for its

own partisan ends, the Court’s norm against partisan

government should apply with equal force.

B. The Court’s Fourteenth Amendment de-

cisions support the norm that govern-

ment action solely for partisan advantage

is illegitimate.

The Court’s decisions under the Fourteenth

Amendment likewise adopt the norm against government

action to achieve a partisan advantage. The Equal Pro-

tection Clause prohibits a state from “denyling] to any

person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1. To show a violation

of the Equal Protection Clause, plaintiffs must prove

both a discriminatory purpose and a discriminatory ef-

fect, upon which the burden shifts to the government to

show that the discrimination was justified by a legitimate

state interest. See, eg., Washington v. Davis, 426 U.S.

229, 239-41 (1976). It is that same burden-shifting, inter-

est-based analysis that the Court employs under the

Fourteenth Amendment’s “one person, one vote” doc-

trine. See Brown v. Thomson, 462 U.S. 835, 842-43

(1983). Intent to advantage or to disadvantage a political

party cannot be such a legitimate state interest. See

Romer v. Evans, 517 U.S. 620, 684-35 (1996) (“[I}f the

constitutional conception of ‘equal protection of the laws’

means anything, it must at the very least mean that a

bare . . . desire to harm a politically unpopular group

cannot constitute a legitimate governmental interest.”)

(quoting USDA v. Moreno, 413 U.S. 528, 534 (1973)).

Within its equal protection jurisprudence, this

Court’s “one person, one vote” doctrine prohibits even

modest population deviations between legislative districts

when those deviations are based solely on the illegitimate

purpose of providing partisan advantage. To succeed un-

der the “one person, one vote” doctrine, plaintiffs must

show that it is more probable than not that a population

deviation of less than ten percent is predominantly based

on “illegitimate reapportionment factors” rather than

“legitimate considerations.” Harris, 136 S. Ct. at 1304,

1307. Even if the effect of the redistricting is relatively

minor, it violates the Equal Protection Clause if it

“serve[s] no purpose other than to favor one segment—

whether racial, ethnic, religious, economic or political—

that may occupy a position of strength . . . or to disad-

vantage a politically weak segment.” Karcher v. Daggett,

462 U.S. 725, 748 (1983) (Stevens, J., concurring).

In Harris, the Court held that an Arizona Com-

mission’s redistricting plan did not violate the Equal Pro-

tection Clause because the population deviations it gen-

erated were based on a legitimate purpose—a good-faith

effort to comply with the Voting Rights Act—rather than

by a desire to seek partisan advantage. 136 S. Ct. at 1309.

Justice Breyer, writing for the Court, reserved the ques-

tion of whether “partisanship is an illegitimate redistrict-

ing factor,” but stated that “[njo legitimate purposes

could explain” the population deviations in redistricting

in a previous case, Cox v. Larios, 542 U.S. 947 (2004). Id.

at 1310.

In Larios v. Coz, Georgia Democrats had redis-

tives: the protection of rural Georgia and inner-city At-

lanta against a relative decline in their populations . . .

and the protection of Democratic incumbents.” 300 F.

Supp. 2d 1320, 1325 (N.D. Ga. 2004), aff'd, 542 U.S. 947

(2004). A three-judge district court held that the partisan

gerrymander violated the “one person, one vote” doctrine

and that in districting, “each population deviation re-

quires at least some plausible and consistently applied

state interest to justify it . . . and the defendant’s two

proffered justifications are plainly impermissible.” /d. at

1352-53 (emphasis in original).

This Court summarily affirmed. In a concurring

opinion joined by Justice Breyer, Justice Stevens rea-

soned that “the drafters’ desire to give an electoral ad-

vantage to certain regions of the State and to certain in-

from the principle of one person, one vote.” Coz, 542 U.S.

at 949. Justice Stevens made clear his belief that the “one

person, one vote” violation was triggered not by the

magnitude of the population deviation, but rather by par-

tisan-motivated redistricting with no legitimate purpose.

See id. at 949-51.

The Court’s racial gerrymandering jurisprudence

similarly supports the norm that naked partisan ad-

vantage is an illegitimate basis for government action. In

Cooper v. Harris, a prior version of the districting map at

issue in this case was challenged as an unconstitutional

racial gerrymander, and the Court held that strict scruti-

ny applies “if legislators use race as their predominant

districting criterion with the end goal of advancing their

partisan interests . . . [because] the sorting of voters on

grounds of their race remains suspect even if race is

meant to function as a proxy for other (including political)

characteristics.” Cooper v. Harris, 137 S. Ct. 1455, 1473

n.7 (2017) (citing Miller, 515 U.S. at 915).

Because, as the Court has recognized, “racial ger-

rymandering is highly correlated with political affilia-

tion,” id. (quoting Easley, 532 U.S. at 242), legislatures

commonly sort voters by race for the purpose of achiev-

ing partisan advantage, see Bruce E. Cain & Emily R.

Zhang, Blurred Lines: Conjoined Polarization and Vot-

ing Rights, T7 Ohio St. L.J. 867, 871, 888 (2016) (“In the

context of conjoined polarization, race and politics are

mirror images of each other and can be used inter-

changeably for redistricting.”). Look no further than the

Common Cause decision now before the Court. After it

was struck down as an unconstitutional racial gerryman-

der, the legislature redrew the map with the sole intent

of benefitting Republicans at the expense of other politi-

cal parties—and the redrawn map was functionally

equivalent to its predecessor, seeking to preserve Repub-

lican advantage in 10 of the 13 congressional districts in

the state. Common Cause, 318 F. Supp. 3d at 882 (“[Tyhe

facts and circumstances surrounding the drawing and

enactment of the 2011 Plan—the partisan effects of which

the Committee expressly sought to carry forward in the

2016 Plan—further establish that the General Assembly

drew the 2016 Plan to maximize partisan advantage.”).

The petitioners pursue the same defense as before: that

their sole motivation in drawing the map was to benefit

Republican voters at the expense of voters belonging to

The Court rightfully does not allow racial gerry-

mandering, but as this case demonstrates, if the sole pur-

suit of partisan advantage was a legitimate state interest,

legislatures would have free rein to achieve the same re-

sults under the guise of achieving partisan objectives.

This surely was not the Court’s intent in Cooper, which

supports the norm that the sole pursuit of partisan ad-

vantage is not a legitimate state interest.

C. The Court’s Elections Clause decisions

support the norm that government action

solely for partisan advantage is illegiti-

mate.

government action also drives the Court’s decisions re-

lated to the administration of elections. The Elections

Clause, U.S. Const. art. I, § 4, delegates authority to

states to establish procedures for congressional elections.

The Court has made it clear that this clause is a delega-

tion of authority to adopt only procedural regulations for

congressional elections; it does not permit states to favor

or to disadvantage particular candidates. See U.S. Term

Limits, Inc. v. Thornton, 514 U.S. 779, 835 (1995). States

are not permitted to dictate electoral outcomes based on

candidates’ political positions because such action would

constitute an illegitimate purpose and would be incon-

sistent with the constitutional norm against government

action solely in support of partisan advantage. See Cook

v. Graiike, 531 U.S. 510, 526-27 (2001); Thornton, 514

U.S. at 833-34 (“{T}he Framers understood the Elections

Clause as a grant of authority to issue procedural regula-

tions, and not as a source of power to dictate electoral

outcomes, to favor or disfavor a class of candidates, or to

evade important constitutional restraints.”).

In Cook, the Court overturned a Missouri consti-

tutional amendment requiring each candidate’s position

on congressional term limits to be printed on the ballot

because the amendment had the purpose of favoring cer-

tain candidates over others. 531 U.S. at 524. The Court

found that the law violated the Elections Clause because

its purpose was to “dictate electoral outcomes” based on

candidates’ positions. Jd. at 526 (quoting Thornton, 514

U.S. at 833-34); see id. at 524-27; see also Kusper v. Pon-

tikes, 414 U.S. 51, 57 (1973) (“[Aldministration of the

electoral process is a matter that the Constitution largely

entrusts to the States. But . . . States may not infringe

upon basic constitutional protections.”).

Similarly, courts have emphasized the illegitimacy

of government election administration with a partisan

purpose in striking down voter identification laws and

early voting restrictions on nonracial bias grounds. In

Obama for America v. Husted, the Sixth Circuit affirmed

a district court’s injunction against an Ohio law limiting

early voting because the law discriminated between clas-

ses of voters. 888 F. Supp. 2d 897 (S.D. Ohio 2012). The

court in Husted drew upon this Court’s holding in Bush

v. Gore that “the State may not, by later arbitrary and

disparate treatment, value one person’s vote over that of

another.” Jd. at 910 (quoting Bush v. Gore, 531 U.S. 98,

104—05 (2000)).

Consistent with the constitutional norm estab-

lished in these cases, the panel below in Common Cause

held that redistricting of congressional districts for parti-

san advantage violates the Elections Clause. See Com-

mon Cause, 318 F. Supp. 3d at 941. The panel concluded

that the North Carolina 2016 redistricting map “disfa-

vor{ed] the interests of supporters of a particular candi-

date or party in drawing congressional districts,” showed

bias toward a specific political party, and was an “imper-

missible effort to ‘dictate electoral outcomes’ and ‘disfa-

vor a class of candidates.” Jd. at 987 (quoting Thornton,

514 U.S. at 833-34). The panel held that the redistricting

“violates the Elections Clause by ‘infring{ing] upon basic

constitutional protections.” /d. at 938 (quoting Kusper,

414 U.S. at 56-57).

Itt REQUIRING THE GOVERNMENT TO

ESTABLISH THAT THE PARTISAN EFFECTS

OF REDISTRICTING WERE THE

INCIDENTAL RESULT OF ITS PURSUIT OF

LEGITIMATE STATE INTERESTS WOULD

PROVIDE A CLEAR AND ADMINISTRABLE

STANDARD AND A MEANINGFUL CHECK

ON ILLEGITIMATE PARTISAN

GERRY MANDERING

An electoral map with partisan effects that can be

explained only by the intent to achieve partisan ad-

vantage violates the Constitution. However, a map with

partisan effects that can be explained as the necessary

consequence of the government’s pursuit of legitimate

state interests—such as respect for traditional political

boundaries and subdivisions, compactness and contiguity,

the preservation of communities of interest, and compli-

ance with the Voting Rights Act—should be upheld. Fo-

cusing the constitutional inquiry on the requirement of a

legitimate state interest in redistricting, rather than on

the excessiveness of the partisan effects, would render

unnecessary the need to define excessiveness of partisan

effect that has proved so vexing for the courts since Vi-

eth.

A. A constitutional standard based on a re-

quirement that an acceptable plan be de-

signed to further legitimate state inter-

ests would provide a manageable and

meaningful check on the redistricting

process.

Applying the proposed standard, the government

would need to demonstrate that the partisan effects of a

redistricting plan were the incidental result of the gov-

ernment’s pursuit of legitimate state interests rather

than an effort to provide an advantage to one political

party at the expense of another. A redistricting plan

could be upheld if the government successfully showed

that the partisan effects of redistricting were indirect but

necessary results of legitimate state interests. If plain-

tiffs established both partisan intent and effects, and the

government could not explain the partisan effects of its

redistricting plan as the product of legitimate state inter-

ests, a map would be struck down as the unconstitutional

result of lawmaking based on the “naked purpose to dis-

advantage a political minority.” Vieth, 541 U.S. at 336-37

(Stevens, J., dissenting); cf Romer, 517 U.S. at 682-36

(1996) (ruling that bare animus to disadvantage a group,

even outside a fundamental right or protected class, does

not qualify as a legitimate state interest); USDA v.

Moreno, 413 U.S. at 534-35 (concluding that equal pro-

tection “must at the very least mean that a bare congres-

sional desire to harm a politically unpopular group cannot

constitute a legitimate governmental interest”).

Such a standard would be familiar. As highlighted

in Point I, supra, constitutional standards based on par-

tisan purpose already control in related areas of law un-

der the First Amendment, the Fourteenth Amendment,

and the Elections Clause. In considering a challenge to

partisan redistricting under the “one person, one vote”

doctrine in Harris, the Court concluded that a plaintiff

must show that “it was more probable than not that the

use of illegitimate factors significantly explained devia-

tions from numerical equality.” 136 S. Ct. at 1310. Simi-

larly, prior to Vieth, Bandemer required courts to assess

whether a redistricting plan constituted “intentional dis-

crimination against an identifiable political group.” 478

U.S. at 127. In addition, courts have long assessed legis-

lative purpose in the context of racial discrimination

claims under the Fourteenth Amendment. See, e.g., Vill

of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252 (1977) (holding a zoning ordinance did not vio-

late the Constitution because there was no proof that

“discriminatory purpose was a motivating factor in the

Village’s decision”). As evidenced by its application in re-

lated contexts, the proposed standard would be “clear,

manageable, and politically neutral.” Vieth, 541 U.S. at

307-08 (Kennedy, J., concurring in the judgment).

A redistricting body might attempt to cloak an

impermissible partisan purpose in a pretextual rationale,

but courts have shown themselves to be adept at analyz-

ing whether explanations are genuine or pretextual. In

egregious cases, like those presented by the 2001 Georgia

House of Representatives and 2002 Georgia Senate re-

districting plans at issue in Coz, lower courts have had no

trouble determining that the partisan effects of the redis-

tricting resulted solely from a government purpose to

advantage one political party. In Whitford v. Gill, the dis-

trict court found that it could distinguish between the

impermissible partisan purpose that predominated and

the pretextual recitation of compactness and contiguity

that was facially consistent with the final redistricting

plan. Whitford v. Gill, 218 F. Supp. 3d 837, 891-96, 922-

27 (W.D. Wis. 2016), vacated and remanded, 138 S. Ct.

1916 (2018). In that case, although the electoral districts

were largely compact and contiguous, the court rejected

the State of Wisconsin’s claim that the redistricting plan

could be justified in terms of legitimate state interests

because the redistricting body had considered and inten-

tionally rejected numerous alternative maps _ that

achieved the same degree of compactness and contiguity

in favor of maps with greater and more durable partisan

effect. Id.°

purpose also may be helpfully informed by empirical

measures of partisan effect such as the “efficiency gap”

metric put forward by Eric McGhee. See Eric McGhee,

Measuring Partisan Bias in Single-Member District

Electoral Systems, 39 Legis. Stud. Q. 55 (2014). As rec-

ognized below and in Whitford, empirical measures of

partisan effect are probative as to the true purpose of the

redistricting body in implementing the redistricting plan

at issue.

In addition to empirical measures of a partisan ef-

fect, other indicia of impermissible intent can be helpful

in identifying partisan purpose: the settings for comput-

ers in the design of maps, the timing of the redistricting

effort (e.g., mid-decade versus constitutionally mandated

® This Court vacated the district court’s judgment in Gill

based on the plaintiffs’ failure to demonatrate standing, and remand-

ed the case to provide the plaintiffs the opportunity to prove stand-

ing consistent with its opinion. See Gill, 138 S. Ct. at 1983-34. On

remand, the district court “delay{ed] the trial and any decision on the

merits” pending this Court’s decisions in these cases (Common

Cause and Benisek). Whitford v. Gill, No. 18-cv-763-jdp, 2019 WL

294800, *1 (W.D. Wis. Jan. 23, 2019).

dural norms in the redistricting process, the proportion

of samne-party incumbents forced to compete in the same

district, the use of partisan experts in drawing redistrict-

ing, the choice of a plan based on the relative partisan

effect of various proposed maps as compared to the se-

statements from individuals involved in the redistricting

process as well as their subsequent testimony.

While pretextual explanations can be discredited,

under the Court’s current standards, many legislators do

not even bother with a pretext. In view of this Court’s

decisions which have served to effectively encourage ra-

ther than discourage partisanship in designing plans,

members of redistricting bodies have with increasing

frequency openly acknowledged that the motivation un-

derlying a redistricting plan was to entrench one political

party at the expense of another. See, eg., LULAC, 548

U.S. at 458 (“According to former Lieutenant Governor

Bill Ratliff, a highly regarded Republican member of the

State Senate, ‘political gain for the Republicans was

110% of the motivation for the Plan, . . . it was the entire

motivation.”) (quotation omitted) (Stevens, J., concurring

in part and dissenting in part).

Legislators have not infrequently advanced a fa-

cially neutral rationale, but then have felt free to speak in

more candid terms that provide direct evidence of parti-

san intent. For example, in the run-up to the 2012 presi-

dential election, Pennsylvania House Republican leader

Mike Turzai asserted that Pennsylvania’s voter-

identification law, which had purportedly been designed

to protect the integrity of the ballot from voter fraud,

was “gonna allow [Republican presidential nominee Mitt]

Romney to win the state of Pennsylvania, done.” Mac-

kenzie Weinger, “Pa Pol: Voter ID Helps GOP Win

State,” Politico (June 25, 2012) (quoting Rep. Turzai).°

While a purpose-focused standard would provide a

meaningful check against partisan gerrymandering, it

would not prevent political bodies from playing their tra-

ditional role in redistricting. Just as under the “one per-

son, one vote” doctrine, it would neither burden political

actors with a standard of conduct that would be difficult

to meet nor pose a risk that all redistricting decisions

would become subject to judicial challenge. As Justice

Breyer explained in Vieth, “[tJhe use of purely political

boundary-drawing factors, even where harmful to the

members of one party, will often nonetheless find justifi-

cation in other desirable democratic ends.” 541 U.S. at

360 (Breyer, J., dissenting). Under the purpose-based

standard Amicus advocates, an inquiry into legislative

purpose will arise only when a plaintiff is able to present

evidence of a partisan bias in a redistricting plan, and

would lead to the overturning of a redistricting plan only

if a state is unable to put forward a legitimate govern-

ment interest explaining the redistricting plan’s partisan

effect. Just as the courts are not flooded with “one per-

son, one vote” cases, under the same proposed standard

only a small minority of redistricting plans are likely to

under a purpose-based standard.

* Available at www.politico.com/story/ 2012/06/pa-pol-voter-

id-helps-gop-win-state- 077811

B. Requiring the government to ground its

decisions in a legitimate purpose would

provide essential support for well-

established constitutional norms.

While such a standard might directly invalidate

only a relatively limited number of redistricting maps

where the government cannot articulate a legitimate,

non-pretextual purpose for the redistricting plan, the

rule would provide a strong motivation for government

officials to adhere to constitutional principles a: to in-

ternalize a “sense of constraint” on partisan excesses in

the redistricting process. This is precisely what has taken

place in the context of racial gerrymandering, where, fol-

lowing Shaw, legislatures internalized the principles un-

derlying that decision and have generally conformed the

redistricting process to those principles. See Richard Pi’

des, The Constitutionalization of Democratic Politics,

118 Harv. L. Rev. 29, 68~70 (2004). If the Court imposes a

would be less likely to describe redistricting in terms of

“cannibaliz|ation]” of the other party, see Hulme v. Mad-

ison County, 188 F. Supp. 2d 1041, 1051 (S.D. DL 2001),

or assert that redistricting is “the business of rigging

elections,” see John Hoeffel, Siz Incumbents Are a Week

Away from Easy Election, Winston-Salem J. (Jan. 27,

1988) (quoting State Senator Mark McDaniel criticizing

the North Carolina legislature). Instead, legislators

would need to identify and articulate a basis for redis-

tricting that adheres to democratic principles. Driven by

the law requiring them to do so, legislatures would be far

more likely to design districts that actually do conform to

those principles.

CONCLUSION

Amicus respectfully proposes that the Court en-

dorse the purpose-based standard set forth in this brief

for resolving challenges to partisan gerrymandering, and

submits that application of this standard is a basis for af-

firming the decisions below in Rucho v. Common Cause,

No. 18-422 and Lamone v. Benisek, No. 18-726.

Respectfully submitted,

James P. Rouhandeh

Counsel of Record

David B. Toscano

Thomas Dec

Amanda Rae Schwarzenbart

DAVIS POLK & WARDWELL

LLP