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Judicial Watch • Benisek JW AEF Amicus Brief 17-333

Benisek JW AEF Amicus Brief 17-333

Benisek JW AEF Amicus Brief 17-333

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Date Created:January 29, 2018

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Tags:Benisek, 333, 17-333, Districting, principles, Vieth, Lamone, Whitford, Traditional, redistricting, partisan, AEF, LEXIS, gerrymandering, Souter, Amici, Standard, shapiro, political, Amicus, educational, maryland, Foundation, justice, Supreme Court, district


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No. 17-333 THE
Supreme Court the United States
_________ JOHN BENISEK, AL.,
Appellants,
LINDA LAMONE, AL.,
Appellees.
_________ Appeal from the United States District
Court for the District Maryland
_________
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT NEITHER
PARTY
_________ Russell Nobile
WISE CARTER CHILD
CARAWAY, P.A.
2510 14th Avenue,
Suite 1125
Gulfport, 39501
(228) 867-7141
trn@wisecarter.com
Robert Popper
Counsel Record
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
Dated: January 29, 2018
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY ARGUMENT.....................................3
ARGUMENT ...............................................................4
NEITHER THIS CASE NOR GILL HAS SET
FORTH JUDICIALLY MANAGEABLE
WAY ADJUDICATE CLAIMS
PARTISAN GERRYMANDERING..................4
II.
ANY STANDARD IDENTIFY PARTISAN
GERRYMANDERING MUST
GROUNDED TRADITIONAL
DISTRICTING PRINCIPLES ..........................8
CONCLUSION ..........................................................13
TABLE AUTHORITIES
FEDERAL CASES
Benisek Lamone,
266 Supp. 799 (D. Md. 2017) ..................2,
Benisek Mack, Supp. 516 (D. Md. 2014),
aff 584 App 140 (4th Cir. 2014),
rev sub nom. Shapiro McManus,
136 Ct. 450 (2015).............................................2
Bush Vera, 517 U.S. 952 (1996) .............................8
Cox Larios, 542 U.S. 947 (2004) ............................7
Davis Bandemer, 478 U.S. 109 (1986) ................4,
Fletcher Lamone, 831 Supp. 887
(D. Md. 2011), affd,
567 U.S. 930 (2012)...............................................2
Gaffney Cummings, 412 U.S. 735 (1973) ..............7
Gorrell Malley,
No. WDQ-11-2975,
2012 U.S. Dist. LEXIS 6178
(D. Md. Jan. 19, 2012) .........................................2
League United Latin Am. Citizens Perry,
548 U.S. 399 (2006) ..............................................8
Miller Johnson, 515 U.S. 900 (1995) ..................8,
iii
Olson Malley,
No. WDQ-12-0240,
2012 U.S. Dist. LEXIS 29917
(D. Md. Mar. 2012) ...........................................2
Parrott Lamone,
2016 U.S. Dist. LEXIS 112736
(D. Md. Aug. 24, 2016),
appeal dismissed, 137 Ct. 654 (2017) ........3,
Reno Bossier Par. Sch. Bd.,
520 U.S. 471 (1997) ..............................................9
Shapiro McManus,
203 Supp. 579 (D. Md. 2016) ..................2,
Shaw Reno, 509 U.S. 630 (1993) ............................9
Vieth Jubelirer, 541 U.S. 267 (2004) ............ passim
Whitford Gill,
218 Supp. 837 (W.D. Wis. 2016) ............2,
STATE CASES
Parrott McDonough, Case No. 1445 (Md. Ct. Spec.
App. July 23, 2014) (available
https://goo.gl/cQa67S), cert. denied, 440 Md. 226
(2014) ...................................................................
Whitley State Bd. Elections,
429 Md. 132 (2012) ..............................................
OTHER AUTHORITIES
Brief for Judicial Watch and Allied Educational
Foundation Amici Curiae Supporting Appellants,
Gill Whitford, No. 16-1161 ................................3,
Petitioners Jurisdictional
Statement, Parrot Lamone,
No. 16-588, appeal dismissed,
137 Ct. 654 (2017) .................................................11
INTERESTS THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch
nonpartisan, nonprofit 501(c)(3) educational
foundation that seeks promote transparency,
integrity, and accountability government and
fidelity the rule law. Judicial Watch regularly
files amicus curiae briefs advance its public
interest mission and has appeared amicus curiae this Court several occasions.
The Allied Educational Foundation AEF
501(c)(3) nonprofit charitable and educational
foundation based Englewood, New Jersey.
Founded 1964, AEF dedicated promoting
education diverse areas study. AEF regularly
files amicus curiae briefs means advance its
purpose and has appeared amicus curiae this
Court number occasions. this case, the plaintiffs filed suit the U.S.
District Court for the District Maryland alleging
that Maryland 2011 congressional redistricting
statute
was
unconstitutional
partisan
gerrymander, violating the First Amendment and art. Benisek Lamone, 266 Supp. 799 (D.
Amici state that counsel for party this case authored
this brief whole part; and person entity, other than
amici and its counsel, made monetary contribution intended
fund the preparation and submission this brief. Appellant and
respondent both have filed blanket consents the filing
amicus curiae briefs.
Maryland 2011 congressional redistricting may the
most extreme, and effective, congressional gerrymander the
nation. Unsurprisingly, has been the subject near-constant
Md. 2017). divided panel denied the plaintiff
motion for preliminary injunction and stayed
proceedings pending this Court ruling Gill
Whitford, No. 16-1161. See also Whitford Gill, 218 Supp. 837 (W.D. Wis. 2016). its ruling, the
district court applied earlier ruling from the
proceedings wherein the panel set forth the standard
for determining whether districting plan was
unconstitutionally partisan. Shapiro McManus Shapiro 203 Supp. 579, 596-97 (D. Md.
2016). Evaluating that standard the context
motion for preliminary relief, the district court held
that plaintiffs had not shown likelihood that they
would prevail the merits. Benisek, 266 Supp.
3d. 802.
Amici are experts the important political and
constitutional
questions
concerning
partisan
gerrymandering that are raised the district court
decision. Amici believe, moreover, that partisan
gerrymandering gives rise justiciable
constitutional claim, and they have argued for their
own standard based violations traditional
litigation. See Fletcher Lamone, 831 Supp. 887 (D. Md.
2011), affd, 567 U.S. 930 (2012); Gorrell Malley, No. WDQ11-2975, 2012 U.S. Dist. LEXIS 6178 (D. Md. Jan. 19, 2012);
Olson Malley, No. WDQ-12-0240, 2012 U.S. Dist. LEXIS
29917 (D. Md. Mar. 2012); Benisek Mack, Supp. 516
(D. Md. 2014), aff 584 App 140 (4th Cir. 2014), rev sub
nom. Shapiro McManus, 136 Ct. 450 (2015); Shapiro II, 203 Supp. 579 (D. Md. 2016); see also Whitley State Bd.
Elections, 429 Md. 132 (2012); Parrott McDonough, Case No.
1445 (Md. Ct. Spec. App. July 23, 2014) (available
https://goo.gl/cQa67S), cert. denied, 440 Md. 226 (2014).
districting criteria during their own challenge the
same congressional redistricting plan Maryland.
See Parrott Lamone, 2016 U.S. Dist. LEXIS 112736
(D. Md. Aug. 24, 2016), appeal dismissed, 137 Ct.
654 (2017). Amici previously appeared amici
Gill, discussing the numerous practical shortcomings the efficiency gap analysis proposed the
plaintiffs that case. See Brief for Judicial Watch
and Allied Educational Foundation Amici Curiae
Supporting Appellants 4-15, Gill Whitford, No.
16-1161.
SUMMARY ARGUMENT
Before accepts the invitation posed this case
and Gill attempt distinguish unconstitutional
gerrymandering from ordinary political redistricting,
this Court must certain that courts are equipped
tell the difference. Justice Kennedy has explained,
this will require the Court develop manageable and
politically
neutral
standards
for
detecting
gerrymandering, and apply those standards
way that confines the Court role what
inherently political endeavor. Vieth Jubelirer, 541
U.S. 267, 307-08 (Kennedy, J., concurring
judgment).
Neither the standard developed this case nor
the standard adopted the district court Gill
satisfies these concerns. Any legal approach the
problem unconstitutional partisan gerrymandering
must beyond these standards, which may
described, word, partisan intent plus partisan
effect. Amici submit this brief the Court
support single point: that any workable approach proscribing partisan gerrymandering must also
consider whether mapmakers have violated
traditional districting principles. Legal frameworks
embodying this approach have been proposed before
for example, Justice Souter dissent Vieth, 541
U.S. 347-351.
Traditional districting principles, such
compactness, contiguity, and respect for established
political boundaries have been bedrock considerations
under this Court redistricting jurisprudence for
decades, and there reason discard them
favor untried standards that rely entirely what
legislators say (or, future, learn not say) and
the unpredictable fortunes political parties. Much
less there any reason follow currently favored
social science theories that disregard decades
practical knowledge and jurisprudence concerning
the process drawing district lines.
ARGUMENT
NEITHER THIS CASE NOR GILL HAS
SET FORTH JUDICIALLY
MANAGEABLE WAY ADJUDICATE
CLAIMS PARTISAN
GERRYMANDERING. Bandemer, this Court held that plaintiff
could state justiciable claim for partisan
gerrymandering. Davis Bandemer, 478 U.S. 109,
113 (1986). the three decades since Bandemer
claim partisan gerrymandering has ever succeeded
and court has been able identify judicially
discernable
and
manageable
standard
for
adjudicating such claims. The Court must determine
which, any, party this case Gill has finally
identified judicially discernable and manageable
standard. The appellants this case claim they
have. Amici disagree.
Any
standard
addressing
partisan
gerrymandering must overcome the two obstacles
identified Justice Kennedy Vieth. The first
obstacle that the standard needs include
comprehensive and neutral principles for drawing
electoral boundaries.
Vieth, 541 U.S. 307
(Kennedy, concurring judgment).
Those
principles need contain clear, manageable, and
politically neutral standards for measuring fair and
effective representation for all citizens and any
burdens representational rights resulting from
districting. Id. Second, the standard needs
incorporate rules that limit and confine judicial
intervention. Id. 307-08. Neither the two
standards before this Court overcomes these
obstacles.
The standard selected the district court this
case requires plaintiffs prove (1) that those
responsible for the map redrew the lines plaintiffs
district with the specific intent impose burden
plaintiffs and similarly situated citizens based how
they voted the political party affiliation; (2) that the
challenged map diluted the votes the targeted
citizens such degree that resulted tangible
and concrete adverse effect; and (3) that, absent the
mapmakers intent burden particular group
voters reason their views, the concrete adverse
impact would not have occurred. Benisek, 266
Supp. 802 (citing Shapiro II, 203 Supp.
596-97). setting forth this standard, the district
noted:
the standard that the Western District
Wisconsin has endorsed remarkably
similar conclude, the Wisconsin
court wrote, that the First Amendment and
the Equal Protection clause prohibit
redistricting scheme which (1) intended
place severe impediment the
effectiveness the votes individual
citizens the basis their political
affiliation, (2) has that effect, and (3) cannot justified other, legitimate legislative
grounds. Whitford, 218 Supp. 884.
Benisek, 266 Supp. 814.
Without more, these standards are hopelessly
inadequate way identify and proscribe
unconstitutional partisan gerrymandering, for
several reasons. begin with, the emphasis
direct evidence intent will simply ensure that any
frank discussion the practice redistricting will
These problems were well explored greater detail the
briefing this issue and Judge Grisbach dissent Gill.
Whitford Gill, 218 Supp. 947-65 (W.D. Wis. 2016)
(Griesbach, dissenting) and Brief for Judicial Watch and
Allied Educational Foundation Amici Curiae Supporting
Appellants 13-15, Gill Whitford, No. 16-1161.
driven underground, into oral discussions rather
than documents. Mapmakers will never again unguarded they were Maryland and
Wisconsin, and relevant admissions will become rare.
Further, the impact partisan gerrymander
electoral outcomes difficult disaggregate from
thousand other often immeasurable factors that affect
elections. Wave elections, personalities, transient
issues, news stories, economic interests, and national
politics all play role determining electoral
outcomes. Social science theories that claim the
ability somehow isolate the effect political
gerrymandering such the currently fashionable
efficiency gap theory are, best, unproven, and worst, junk science. The consequences getting
wrong, moreover, are enormous, and potentially
entail courts setting aside valid elections and
ordering shifts electoral power between and among
political parties, arbitrary grounds.
The district courts standards not provide any
principled way distinguish between the politics
that inescapably accompanies redistricting and the
more extreme partisanship that leads extreme
gerrymandering. the Court has frequently
recognized, districting partisan nature. See Cox Larios, 542 U.S. 947, 952 (2004) (Scalia,
dissenting) (suggesting that politics usual
traditional redistricting criterion); Gaffney
Cummings, 412 U.S. 735, 753 (1973) The reality
that districting inevitably has and intended have
substantial political consequences. Vieth, 541 U.S. 285 The Constitution clearly contemplates
districting political entities, see Article and
unsurprisingly that turns out root-and-branch
matter politics. (plurality opinion; Miller
Johnson, 515 U.S. 900, 915 (1995) Electoral
districting most difficult subject for legislatures,
and the States must have discretion exercise the
political judgment necessary balance competing
interests. Because the district courts standards
apply and limit even constitutionally permissible
partisan districting activities, they are overly broad.
Their inability tell the average from the truly bad
will ensure that every redistricting case will become federal case.
Ultimately, the use these standards will lead
the transfer the responsibility for redistricting from
state legislatures the federal courts which will
still left without clear and principled way
conduct that redistricting. More needed
standard ensure that only impermissible
partisan gerrymandering proscribed.
II.
ANY STANDARD IDENTIFY
PARTISAN GERRYMANDERING MUST GROUNDED TRADITIONAL
DISTRICTING PRINCIPLES.
This Court has long history considering and
evaluating jurisdictions adherence traditional
districting principles such contiguity, compactness,
and preserving the integrity political subdivisions.
Vieth, 541 U.S. 284; Bush Vera, 517 U.S. 952, 960
(1996) (affirming finding that Texas districts did not
conform traditional districting principles); League United Latin Am. Citizens Perry, 548 U.S. 399,
463 n.5 (2006) (Stevens, dissenting) (discussing
consideration traditional districting principles
other cases); Reno Bossier Par. Sch. Bd., 520 U.S.
471, 488 (1997) (noting different inferences that can drawn from evaluating whether jurisdiction
chooses districting plans that comply with traditional
redistricting principles); Miller, 515 U.S. 916 Where these other race-neutral considerations
are the basis for redistricting legislation, and are not
subordinated race, State can defeat claim that district has been gerrymandered racial lines.
(citations omitted); Shaw Reno, 509 U.S. 630, 647
(1993) (traditional redistricting criteria, objective
factors, may serve defeat claim that district has
been gerrymandered racial lines).
Four justices Vieth recognized the importance traditional redistricting principles.
Justice
Stevens argued dissent that subversion
traditional districting principles critical
determining that partisanship was jurisdiction
sole motivation. Vieth, 541 U.S. 318. And Justices
Souter dissent, which Justice Ginsburg joined,
explained that plaintiff pursuing political
gerrymandering claim must begin showing that
the district his residence paid little heed
those traditional redistricting principles whose
disregard can shown straightforwardly. Vieth,
541 U.S. 348 (Souter, J., dissenting); see also
Bandemer, 478 U.S. 173 (Powell, J., concurring
part and dissenting part) (of the factors that
should guide both legislators who redistrict and
judges who test redistricting plans against
constitutional challenges, the most important
are the shapes voting districts and adherence
established
political
subdivision
boundaries
(citations omitted).
Indeed, amici respectfully submit that Justice
Souter standard serves example more
complete and workable approach identifying
partisan gerrymandering. Under that standard,
plaintiff would need make prima facie showing
five elements order challenge specific singlemember district. First, the resident plaintiff would
identify cohesive political group which
belonged, which would normally major party.
Id. 347 (Souter, J., dissenting). Second, plaintiff
would need show that the district his residence paid little heed those traditional districting
principles whose disregard can shown
straightforwardly: contiguity, compactness, respect
for political subdivisions, and conformity with
geographic features like rivers and mountains. Id. 347 (citations omitted). Third, the plaintiff
would need establish specific correlations between
the district deviations from traditional districting
principles and the distribution the population his
group. Id. 349. Fourth, plaintiff would need
present the court with hypothetical district
which the plaintiff group was not badly
gerrymandered and which the same time deviated
less from traditional districting principles than the
actual district. Id. (citations omitted). Fifth, and
finally, the plaintiff would have show that the
defendants acted intentionally manipulate the
shape the district order pack crack his
group. Id. 350.
Note that this approach arguably incorporates the
partisan intent plus partisan effect standards
developed the district courts the
gerrymandering cases now before the Court. Indeed, can simply adjusted fully incorporate those
standards. But what adds essential. The
technique partisan gerrymandering consists
placing partisans in, and excluding them from,
various districts, effort manipulate the
political balance power those districts. Because
partisans not choose where live with eye
towards assisting those who draw partisan district
lines, those lines must distorted accomplish the
desired partisan mix. Justice Souter was right
insist that plaintiffs must show that mapmakers paid
little heed traditional districting
principles including contiguity, compactness,
respect for political subdivisions, and conformity with
geographic features like rivers and mountains. Id. 347 (citations omitted). also was right that
this can shown straightforwardly. Compactness
can measured any number simple
mathematical measures.
See, e.g., Petitioners
Jurisdictional Statement 26-30, Parrot Lamone,
No. 16-588, appeal dismissed, 137 Ct. 654 (2017).
Conformity with natural features readily apparent.
Violations political boundaries for example, the
number times these lines are crossed can simply counted. standard that considers traditional districting
criteria rendered judicially manageable. The flood gerrymandering cases that will follow any decision the Court declaring standard will restricted
those where gerrymandering was actually practiced.
The standards enunciated the district courts here
and Gill focus whether the partisan mapmakers
intended partisan gain, and whether electoral results
skewed their favor. But every partisan intends
partisan gain; and political fortunes are
unpredictable, ephemeral, and changeable
economics fortunes public approbation. Focusing traditional districting criteria will ensure that the
cases that are brought will those where partisans
did not just intend partisan gain, but where they
achieved partisan gain means the techniques
and
practices
associated
with
extreme
gerrymandering.
CONCLUSION
For the foregoing reasons, amici Judicial Watch,
Inc. and Allied Educational Foundation respectfully
submit that any standard adjudicating impermissible
partisan
gerrymandering
must
include
consideration traditional districting principles
its analysis. Neither the standard this case nor
that proposed Gill satisfies these criteria.
Respectfully submitted, Russell Nobile
WISE CARTER CHILD
CARAWAY
2510 14th Avenue,
Suite 1125
Gulfport, 39501
(228) 867-7141
trn@wisecarter.com
Robert Popper
Counsel Record
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
January 29, 2018