# 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%3A24 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2019 ## Text 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, v. 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 RE 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 I. 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 11 12 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 © SORES EEE ESTE EEE ES EES SE ROR EES ** 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 iv Obama for Am. v. Husted, 888 F. Supp. 2d 897 (S._D. Ohio 2012) 21 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) 13 Washington v. Davis, 426 US. (1976) 16 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 vi 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 10 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 12 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, 13 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 14 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 15 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 16 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. 17 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- 19 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- 20 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 21 “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. 24 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). 25 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- 26 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 27 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. 28 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 450 Lexington Avenue New York, New York 10017 (212) 450-4000 rouhandeh@davispolk.com Counsel for Amicus Curiae March 8, 2019 29 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0866%3A24. Public record. Not legal advice.