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Judicial Watch • Maryland gerrymander motion to affirm 16-588

Maryland gerrymander motion to affirm 16-588

Maryland gerrymander motion to affirm 16-588

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No. 16-588
================================================================ The
Supreme Court the United States
--------------------------------- --------------------------------NEIL PARROTT, al.,
Appellants,
LINDA LAMONE, al.,
Appellees.
--------------------------------- --------------------------------On Appeal from the United States District Court
for the District Maryland
--------------------------------- --------------------------------MOTION AFFIRM
--------------------------------- --------------------------------BRIAN FROSH
Attorney General Maryland
JULIA DOYLE BERNHARDT*
Deputy Chief Litigation
JEFFREY DARSIE
Assistant Attorney General
200 Saint Paul Place
Baltimore, Maryland 21202
jbernhardt@oag.state.md.us
(410) 576-7291
DECEMBER 2016
Attorneys for Appellees
*Counsel Record
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
QUESTIONS PRESENTED Did the three-judge district court properly dismiss jurisdictional grounds the complaint challenging Maryland 2011 congressional districting plan
because the plaintiffs failed allege invasion
legally-protected interest and therefore lacked standing? Did the plaintiffs, alleging only that Maryland congressional districts are not compact the
plaintiffs believe they should be, fail state substantial claim that Maryland 2011 congressional redistricting plan violates the Constitution?
TABLE CONTENTS
QUESTIONS PRESENTED ................................
TABLE AUTHORITIES .................................
iii
INTRODUCTION ................................................
STATEMENT .......................................................
ARGUMENT ........................................................ The Plaintiffs Failed Allege Invasion Legally-Protected Interest .... The Plaintiffs Lack Standing Assert
Political Gerrymandering Claims
Behalf All Maryland Voters .............
II.
The Three-Judge District Court Properly
Dismissed the Complaint Because the
Plaintiffs Lack Standing ...........................
The Plaintiffs Claims Are Non-Justiciable
and Insubstantial ...................................... The Political Gerrymandering Claims
Are Non-Justiciable ............................. The Claim Under the Due Process
Clause for Alleged Electoral Harms
Caused Non-Compact Congressional Districting Plan Insubstantial........................................................
CONCLUSION.....................................................
iii
TABLE AUTHORITIES
CASES
Ashcroft Iqbal, 556 U.S. 662 (2009) ........................15
Baker Carr, 369 U.S. 186 (1962) ...............................6
Duckworth State Admin. Bd. Election Laws,
332 F.3d 769 (4th Cir. 2003) .......................... 14,
Fletcher Lamone, ___ U.S. ___, 133 Ct.
(2012) .........................................................................1
Fletcher Lamone, 831 Supp. 887 (D. Md.
2011) ............................................................
Goosby Osser, 409 U.S. 512 (1973) .................... 16,
Kalson Paterson, 542 F.3d 281 (2d Cir. 2008) .........17
Karcher Daggett, 462 U.S. 725 (1983) .......................7
League United Latin Am. Citizens Perry,
548 U.S. 399 (2006) ..................................... 10, 12,
Lujan Defenders Wildlife, 504 U.S. 555
(1992). ................................................................
Perez Perry, Supp. 612 (W.D. Tex.
2014) ........................................................................10
Radogno Illinois State Bd. Elections, No.
1:11-cv-04884, 2011 5868225 (N.D. Ill.
Nov. 22, 2011) ..........................................................13
Reynolds Sims, 377 U.S. 533 (1964)......................
Shaw Reno, 509 U.S. 630 (1993) ................... 11,
Spokeo Robins, ___ U.S. ___, 136 Ct. 1540
(2016) .....................................................................
TABLE AUTHORITIES Continued
Tennant Jefferson Cty. Comm 567 U.S. ___,
133 Ct. (2012) ...................................................10
Vieth Jubilirer, 541 U.S. 267 (2004) ........ 10, 14,
Wesberry Sanders, 376 U.S. (1964) ....................
Wood Broom, 287 U.S. (1932) ......................... 11,
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. ..........................................
U.S. Const. amend. XIV ......................................
U.S. Const. art. ........................................... passim
U.S. Const. art. cl. 1.............................................8
U.S. Const. art. III, cl. ..................................
STATUTES
2011 Md. Laws Spec. Sess. ch. ...................................2
MISCELLANEOUS
Black Law Dictionary 696 (7th ed. 1999) ..................1
MOTION AFFIRM
INTRODUCTION
More than four years ago, this Court upheld the
constitutionality Maryland 2011 State Plan for
Congressional Redistricting State Plan against
claims that was impermissible racial partisan
gerrymander. Fletcher Lamone, ___ U.S. ___, 133 Ct. (2012), aff Fletcher Lamone, 831 Supp. 887 (D. Md. 2011). The plaintiffs the present action also purport state claim for partisan gerrymandering but have alleged facts support claim partisan discrimination.1 Instead, the plaintiffs seek enjoin the use the now-established districts solely
because some those districts are less compact than
the plaintiffs contend they ought be. Further, the
plaintiffs have asserted that relative compactness
districts alone determines the constitutionality
districting plan, regardless whether there exists any
evidence partisan motivation partisan effect. The
district court correctly determined that there basis the Constitution, support the case law, for
the plaintiffs asserted right vote more compact
The term political gerrymander has been defined [t]he
practice dividing geographical area into electoral districts, often highly irregular shape, give one political party unfair
advantage diluting the opposition voting strength. Vieth
Jubilirer, 541 U.S. 267, 271 n.1 (2004) (quoting Black Law Dictionary 696 (7th ed. 1999)). The essence any gerrymandering
claim thus the contention that complainants are members
cohesive political group that has suffered unlawful discrimination.
districts and that the plaintiffs therefore failed allege the invasion legally-protected interest necessary establish Article III standing. Moreover, the
plaintiffs claims that either unconstitutional partisan
gerrymandering burden fundamental voting
rights may established exclusively reference
district shapes plainly insubstantial. Accordingly,
the district court judgment dismissing the action
should summarily affirmed.
--------------------------------- ---------------------------------
STATEMENT The General Assembly Maryland adopted
the State Plan special session held October
through October 20, 2011, and took effect October
20, 2011, Chapter Laws Maryland the Special Session 2011. Fletcher, 831 Supp. 891. 2012, the voters approved the State Plan affirmative vote 64%-to-36% statewide referendum.2
The State Plan creates eight congressional districts that are equal population mathematically possible, with seven the eight districts having adjusted population 721,529 and the eighth having adjusted population 721,528. Id. 894. Like
the districting plan passed after the 2000 census, the
The official referendum election results for the ballot question regarding the districting plan are available http://elections.
state.md.us/elections/2012/results/general/gen_qresults_2012_4_
00_1.html.
State Plan creates two majority African-American congressional districts. Id. 891. All the districts are
drawn protect the cores existing districts, and several the districts have not changed substantially
since the last redistricting, indicating that incumbent
protection and desire maintain constituent relationships might the main reasons they take their
present forms. Id. 903.
2a. The plaintiffs this action are Maryland
registered voters, one from each the State eight
congressional districts. J.S. App. 17a-19a 8-16. They
brought this lawsuit June 2015 voters against
their legislators, who are alleged gerrymander
their own interests against all voters the State,
J.S. App. 24a 32, for injuries that all Maryland
voters endure. Id. 31, (alleging that gerrymandering harms everyone regardless their party
preferences how they would vote particular election The complaint thus seeks vindicate rights
interests alleged common all voters rather
than particular injuries imposed upon any subset
voters politically cohesive group. The plaintiffs allege that the State Plan
harms every Maryland voter inflicting particular,
intentional harm partisan and non-partisan voters every description. J.S. App. 25a 36. Although the
plaintiffs generally allege that the State Plan causes
different injuries for different classes voters based those voters political preferences, id. 36a-f, the
plaintiffs not seek redress for injuries suffered
Republicans, but only voters. J.S. (emphasis original). Count the complaint alleges that Maryland partisan gerrymander violates Article
the Constitution. J.S. App. 38a 83. The plaintiffs contend that applying mathematically derived compactness measure congressional districts can
used judicially manageable, discernible, and nonarbitrary standard with which measure, and deter,
excessive partisan gerrymandering. J.S. App. 30a
54.
Count alleges that the non-compactness districts produces harm making more difficult candidates use mass media reach the relevant
electorate, increasing the cost campaigns, and creating voter confusion. J.S. App. 28a-30a 48-52. Because these alleged electoral harms arising from
non-compact districts, the plaintiffs contend, the congressional district plan burdens Plaintiffs right
vote violation their constitutional right Due
Process under the Fifth and Fourteenth Amendments the Constitution. J.S. App. 38a 86.
The plaintiffs seek declaratory judgment finding
the State Plan unconstitutional and permanent injunction against calling, holding, certifying any
elections under the plan. J.S. App. 39a. The plaintiffs
also request that the district court [o]rder State authorities adopt new congressional districting plan
without unlawful political gerrymandering and consistent with the compactness standards articulated [the] Complaint. Id.
3a. The defendants, who are Maryland state
election officials, moved dismiss the action for lack standing, failure state claim, and laches. The
Chief Judge the United States Court Appeals for
the Fourth Circuit designated three-judge district
court hear the motion dismiss. J.S. App. 5a. The three-judge district court held hearing July 12, 2016, J.S. App. 5a, and August 24, 2016,
dismissed the action, id. 14a. The court held that the
plaintiffs lack standing because they have not alleged invasion legally protected interest. Id. 10a
(citing Spokeo Robins, ___ U.S. ___, 136 Ct. 1540,
1548 (2016) (quoting Lujan Defenders Wildlife, 504
U.S. 555, 560 (1992)). The court explained that the
plaintiffs have not identified constitutional provision case that establishes right reside district that has not been mechanically manipulated
manner that transfers the power select representatives away from the people. Id. The plaintiffs filed
notice appeal this Court August 29, 2016. Id.
1a.
--------------------------------- ---------------------------------
ARGUMENT
The Three-Judge District Court Properly
Dismissed the Complaint Because the
Plaintiffs Lack Standing. The Plaintiffs Failed Allege Invasion Legally-Protected Interest. establish Article III standing, plaintiff must
show, among other things, invasion legallyprotected interest, Robins, 136 Ct. 1548, that
concrete and particularized. Lujan, 504 U.S. 56061. Here, the three-judge district court correctly determined, J.S. App. 10a, the harm asserted the
plaintiffs the mechanical[ manipulat[ion Maryland congressional districts manner that transfers the power select representatives from the
people the Maryland General Assembly not
legally-protected interest.
The plaintiffs analogize their claim this Court
One Person, One Vote Cases. See J.S. App. 10a (citing
Reynolds Sims, 377 U.S. 533 (1964); Wesberry
Sanders, 376 U.S. (1964); and Baker Carr, 369 U.S.
186 (1962)). These cases establish that Article
the Constitution requires population equality among
the congressional and state legislative districts each
State such that every person vote has equal weight.
See Wesberry, 376 U.S. 18; Baker, 369 U.S. 206,
237 (congressional districts); Reynolds, 377 U.S. 577
(1964) (state legislative districts). These cases thus require mechanical manipulation districts achieve
the required population equality. the three-judge
district court rightly observed, [t]hat fact alone militates against reading those cases establishing that
the Constitution protects the right reside districts
that have not been mechanically manipulated. J.S.
App. 12a. Moreover, nothing these cases suggests
that the Court should apply [them] claims not asserting unequal population. Id.
The plaintiffs effort analogize claims based
population inequality with those alleging insufficiently compact districts breaks down the most basic
level. Article the Constitution requires districts equal population. Reynolds, 377 U.S. 577; Wesberry, 376 U.S. 18. contrast, the courts
have made clear, part the Constitution requires
that congressional districts any particular shape relative compactness, much less that they adhere the arbitrarily-chosen standard espoused the
plaintiffs. Shaw Reno, 509 U.S. 630, 647 (1993) (traditional districting criteria such compactness, contiguity, and respect for political boundaries are not
constitutionally required see also Duckworth
State Admin. Bd. Elections, 332 F.3d 769, 775 (4th
Cir. 2003) [A]llegations that districts have bizarre
appearance are not probative the discriminatory effect that must proven political gerrymandering cases. Under Article population
inequality the representational injury that must
avoided justified necessary achieve some legitimate goal. Karcher Daggett, 462 U.S. 725, 731
(1983). That not true non-compactness mechanical manipulation districts, neither which
represents injury itself requires special legislative justification.
The three-judge district court thus correctly rejected the plaintiffs untenable reading this Court
One Person, One Vote Cases. J.S. App. 12a. Because
these cases were the sole basis for the plaintiffs claim legally-protected interest reside district
that has not been mechanically manipulated manner that transfers the power elect representatives
away from the people, the three-judge district court
held that the plaintiffs had not sufficiently alleged
standing assert their claims. Id.
Similarly, the plaintiffs failed establish standing their due process claim. Count the
complaint, they alleged electoral harms arising from
non-compact districts, which purportedly burden
their voting rights violation the Due Process
Clause the Fifth and Fourteenth Amendments. J.S.
App. 38a 84-86. case establishes constitutional
right voters free from alleged burdens due
irregularly shaped districts. Here, too, the plaintiffs
failed allege invasion legally-protected interest.
Article cl. the Constitution provides: The Times,
Places and Manner holding Elections for Senators and Representatives, shall prescribed each State the Legislature
thereof. The plaintiffs theory that redistricting Maryland
legislators somehow represents usurpation power reserved the voters therefore untenable. The Plaintiffs Lack Standing Assert
Political Gerrymandering Claims
Behalf All Maryland Voters.
The plaintiffs also lack standing because they
not allege that they are registered Republican voters that the alleged harm they have suffered from voting non-compact districts due their membership any cohesive political group. purporting
seek relief the interest voters generally, the
plaintiffs not allege injury themselves that
concrete and particularized. Instead, the plaintiffs allege members the class all voters that they
have been harmed their legislators, who are alleged gerrymander their own interests against
all voters the State. J.S. App. 24a 31, 32; id. 25a
35. Because the plaintiffs rely only common
grievance discrimination that alleged
shared everyone, they fail allege facts necessary Article III standing. See, e.g., Lujan, 504 U.S. 57374 (finding Article III case controversy where
plaintiff raised only generally available grievance
about government and sought relief that more directly and tangibly benefits him than does the public large Accordingly, the plaintiffs lack standing
assert political gerrymandering claims behalf
voters generally and the three-judge district court
properly dismissed their claims for want federal
court jurisdiction.
II.
The Plaintiffs Claims Are Non-Justiciable
and Insubstantial. The Political Gerrymandering Claims
Are Non-Justiciable. general, assert claim under Article
plaintiff must allege some avoidable population inequality among State congressional districts. Tennant Jefferson Cty. Comm 567 U.S. ___, 133 Ct. (2012) (stating that parties challenging the plan
bear the burden proving the existence population
differences that could practicably avoided (citations omitted). theory, plaintiff may state justiciable claim without alleging population inequality,
but only the plaintiff able provide reliable and
non-arbitrary standard sufficient make the political
gerrymander claim justiciable issue. League
United Latin Am. Citizens LULAC Perry, 548 U.S.
399, 418 (2006). Failing that, the plaintiffs have
this case, complaint alleging political gerrymander properly dismissed the pleading stage. See Perez Perry, Supp. 612, 624 (W.D. Tex. 2014)
(where the plaintiffs not allege adequate standard, claim should dismissed based insufficiency the complaint, the Court did Vieth).
The plaintiffs have not alleged any deviation from
precise mathematical equality the composition
Maryland congressional districts. Nor have they provided reliable and non-arbitrary standard which measure and detect excessive partisanship redistricting. Instead, the plaintiffs assert that the constitution violated where more compact districts
could have been drawn while still respecting, the
same greater extent, partial and arbitrarily chosen set traditional districting principles, measured the number split counties, split precincts, county fragments resulting from the actual and
comparator plans. See J.S. App. 35a 71-74. effect,
the plaintiffs contend that Article requires population equality and arbitrarily chosen degree
compactness.
This Court has been clear, however, that Article itself does not require adherence the redistricting principles that the plaintiffs espouse. Shaw, for
example, the Court stated that although there much
discussion compactness and contiguity the context redistricting cases, that did not mean that such
qualities are constitutionally required they are not.
509 U.S. 630, 647 (1993); see also Wood Broom, 287
U.S. 6-8 (1932) (rejecting challenge based lack
compactness and contiguity light repeal federal
statute imposing those requirements with respect
congressional districts). Although Shaw was split
opinion, all nine justices agreed that compactness and
contiguity are not constitutionally required. Id.
687 (Souter, J., dissenting); see also id. 671-72
(White, J., joined Blackmun, J., dissenting) (stating
that, while [l]ack compactness contiguity and
other district irregularities may provide strong indicia potential gerrymander, they have bearing whether the plan ultimately found violate the
Constitution (emphasis added). Because compactness not constitutional requirement particular districts the plan overall demonstrating
non-compactness insufficient establish, and ultimately irrelevant to, whether constitutional violation
has occurred.
The plaintiffs proposed standard therefore not
mandated the Constitution. Rather, the plaintiffs
standard directly contrary the reasoning Shaw
because would make compactness the determining
factor whether given districting plan violates
the Constitution, regardless any actual evidence
excessively partisan motive discriminatory effect.
The plaintiffs compactness standard even excludes
consideration any direct evidence intent, even
though discriminatory intent has always been core
requirement Equal Protection analysis. See LULAC,
548 U.S. 514 (Scalia, J., concurring) vote dilution
claim focuses the majority intent harm minority voting power.
Similarly, because the proposed standard takes
account whatsoever the partisan makeup (and thus
the presumed competitiveness) the resulting districts, also fails entirely address discriminatory effect. place requirement prove excessive
discriminatory effect, the plaintiffs would simply
equate non-compact district with gerrymandered
one, and vice versa, regardless whether the demographic data confirm refute such conclusion. See,
e.g., J.S. App. 28a Because gerrymandered districts are non-compact. result, the plaintiffs
standard would invalidate plan that not compact might i.e., compact practicable, measured the Polsby-Popper scale even the
plan does not produce actual partisan disadvantage
for any particular group.
The exclusive focus the plaintiffs standard
compactness also divorces from the essence the
constitutional issue. Specifically, the concept discrimination, and thus equal protection, cannot separated from gerrymandering claim. The act
drawing district lines favor the majority party (i.e.,
political gerrymandering the act discriminating
against voters based their political beliefs. Radogno Illinois State Bd. Elections, No. 1:11-cv04884, 2011 5868225, (N.D. Ill. Nov. 22, 2011)
(emphasis original). political gerrymandering
claim does not cease require evidence discrimination simply because plaintiff fails plead any specifics about the kind gerrymander she
alleging. Such omissions not any way strengthen
the plaintiffs claims, but instead fatally undermine
them omitting from their allegations any assertion legally-protected interest support their claim.
The plaintiffs failure recognize that discriminatory effect must alleged and proven only reinforces
the implausibility and insubstantiality the legal theory asserted the complaint.
Without any allegations pertaining the demographic composition Maryland congressional districts, including specific facts any allegedly unfair
concentration dispersion voters belonging any
particular group, impossible say that the State
Plan excessively partisan. Alleging more than the
relative non-compactness district shapes can never
establish the extent any discriminatory effect. See,
e.g., Duckworth, 332 F.3d 775 [A]llegations that
districts have bizarre appearance are not probative the discriminatory effect that must proven political gerrymandering cases.
The plaintiffs not argue that their proposed
standard can reliably distinguish between excessively
partisan district maps, terms intent effect, and
less partisan maps. Rather, their proposed standard
would prevent only extreme noncompactness, regardless discriminatory intent effect, and would
allow any presumably more limited gerrymandering
that could accomplished with districts that are not
extremely non-compact, also regardless discriminatory intent effect. J.S. 28. Such standard fails
accomplish what this Court has held appropriate
standard must.
Necessary the adjudication any partisan gerrymandering claim are clear, manageable, and politically neutral standards for measuring the particular
burden given partisan classification imposes representational rights. Vieth, 541 U.S. 307-08 (Kennedy, J., concurring). The plaintiffs standard does
not any way measure the burdens imposed
plaintiffs representational rights; purports only
prevent some alleged gerrymanders achieved with
non-compact districts.
The defects the plaintiffs proposed standard
are also evident with respect the remedy that the
plaintiffs seek. facts are alleged that, proved,
would show how the plaintiffs proposed map would result significantly more competitive otherwise
fairer congressional elections, district-by-district
state-wide. What the plaintiffs have actually offered
prove merely that more highly-compact districts
could have been formed without increasing the number county precinct boundaries crossed, see J.S.
App. 34a-37a 69-79, contention that ultimately
irrelevant whether the plaintiffs have suffered
constitutional injury, Wood, 287 U.S. 6-8, whether
that injury would remedied alternative plan.4
See, e.g., LULAC, 548 U.S. 447; Vieth, 541 U.S. 281
(plurality); see also Fletcher, 831 Supp. 903
(existence alternative plan allegedly superior vindicating some legitimate redistricting interests irrelevant validity State Plan). sum, the plaintiffs
compactness standard neither constitutionally required nor reliable measure the burden imposed voters representational rights.
The need for judicially discernible standard for
adjudicating partisan gerrymandering claims not
limited claims brought under the Equal Protection
Clause. See, e.g., Vieth, 541 U.S. 305 conclude
The plaintiffs conclusory assertion that non-compact district necessarily gerrymandered district does not meet the
pleading standard with regard proving discriminatory effect.
See Ashcroft Iqbal, 556 U.S. 662, 678-79 (2009) conclusory
statements are insufficient and are not entitled the assumption truth
that neither Article nor the Equal Protection
Clause, nor Article provides judicially enforceable limit the political considerations that the
States and Congress may take into account when districting. Accordingly, the plaintiffs failure plead
facts relevant partisan discrimination does not
transform complaint alleging non-compactness into justiciable claim. The Claim Under the Due Process
Clause for Alleged Electoral Harms
Caused Non-Compact Congressional Districting Plan Insubstantial.
Count the complaint purports seek judicial
relief from alleged electoral harms arising from noncompact districts, which the plaintiffs contend burden
their voting rights violation the Due Process
Clause the Fifth and Fourteenth Amendments. J.S.
App. 38a 84-86. This claim, like the plaintiffs Article claim, foreclosed prior decisions this
Court and therefore insubstantial. See, e.g., Goosby Osser, 409 U.S. 512, 518 (1973).
The plaintiffs have identified decisions this
Court, any court, holding that any provision the
Constitution, including the Due Process Clause, compels legislators create congressional districts that
are more compact shape relative other possible
options. the contrary, this Court and the lower
courts have expressly observed that the Constitution
imposes such rule. Shaw, 509 U.S. 647; Duckworth, 332 F.3d 778. Similarly, court has recognized the Due Process Clause the guarantee
right vote congressional district that meets
any particular standard compactness, including the
arbitrarily-chosen standard that the plaintiffs propose this litigation. The Constitution protects voters
against malapportionment and unlawful discrimination, not against the alleged burden voters irregularly shaped districts.
Whether non-compact districts per violate the
Constitution, whether rule compactness
makes non-justiciable political gerrymandering claims
justiciable, are not subjects genuine controversy. See,
e.g., Goosby, 409 U.S. 518. Similarly, plaintiffs unsupported theory legislators gerrymander against
the voters fails present substantial federal claim.
Kalson Paterson, 542 F.3d 281, 290 (2d Cir. 2008) (affirming decision not convene three-judge panel
where there was basis the case law for the claim
that Article requires districts equal voting age
population).
--------------------------------- ---------------------------------
CONCLUSION
The judgment the district court should summarily affirmed.
Respectfully submitted,
BRIAN FROSH
Attorney General Maryland
JULIA DOYLE BERNHARDT*
Deputy Chief Litigation
JEFFREY DARSIE
Assistant Attorney General
200 Saint Paul Place
Baltimore, Maryland 21202
jbernhardt@oag.state.md.us
(410) 576-7291
Attorneys for Appellees
*Counsel Record