Parrott v Lamone Maryland gerrymander Jurisdictional Statement 10 27 16 16-588
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No. 16-___ The Supreme Court the United States _________ NEIL PARROTT, AL., Appellants, LINDA LAMONE AND DAVID MCMANUS, JR., _________ Appellees. Appeal from the United States District Court for the District Maryland _________ JURISDICTIONAL STATEMENT _________ Robert Popper Counsel Record Chris Fedeli Lauren Burke JUDICIAL WATCH, INC. 425 Third Street Washington, 20024 (202) 646-5172 rpopper@judicialwatch.org Counsel for Appellants October 28, 2016 QUESTIONS PRESENTED Whether Maryland gerrymandered congressional districts deprived Appellants their constitutional right have their representatives selected the People, and unconstitutionally burdened their fundamental right vote. Whether summary reversal appropriate because the district court improperly dismissed Appellants complaint jurisdictional grounds without considering the merits their claims. PARTIES THE PROCEEDING Appellants are Neil Parrott, Ann Marvin, Lucille Stefanski, Eric Knowles, Faith Loudon, Matt Morgan, Ellen Sauerbrey, and Kerinne August, registered voters each Maryland Eight Congressional Districts. Appellees are Linda Lamone, her official capacity the State Administrator Elections, and David McManus, Jr., his official capacity Chairman the Maryland State Board Elections. iii TABLE CONTENTS QUESTIONS PRESENTED ....................................... PARTIES THE PROCEEDING ........................... TABLE CONTENTS ........................................... iii TABLE APPENDICES .........................................v TABLE AUTHORITIES ..................................... JURISDICTIONAL STATEMENT ............................1 OPINION BELOW ......................................................1 JURISDICTION ..........................................................1 CONSTITUTIONAL PROVISIONS INVOLVED ......2 STATEMENT ..............................................................2 Factual Background. ........................................3 II. Appellants Claims This Action ...................5 III. Procedural Background ....................................9 REASONS FOR NOTING PROBABLE JURISDICTION .....................................................10 Excessive Gerrymandering Both Justiciable and Unconstitutional...................12 II. Appellants Have Stated Constitutional Claim For Partisan Gerrymandering ............16 Gerrymandering Unconstitutionally Transfers Power from Voters Legislators. ................................................16 The Court Malapportionment Cases Necessarily Forbid the Manipulation District Boundaries Required Extreme Gerrymandering ........................20 Gerrymandering Undoes the Prophylactic Effect the Equal Population Requirement ...........................24 Minimum Level District Compactness the Appropriate Constitutional Standard ...........................26 III. Gerrymandering Violates Appellants Due Process Rights .........................................31 REASONS FOR SUMMARILY REVERSING AND REMANDING ..................................................33 CONCLUSION ..........................................................37 TABLE APPENDICES APPENDIX Plaintiffs Notice Appeal The United States District Court for the District Maryland, Filed August 29, 2016 .........................................1a APPENDIX Opinion the United States District Court for the District Maryland, Filed August 24, 2016 ......................3a APPENDIX Order the United States District Court for the District Maryland, Filed August 24, 2016 .......................................14a APPENDIX Complaint, Filed June 24, 2015 ..........................................16a TABLE AUTHORITIES FEDERAL CASES Arbaugh YH Corp., 546 U.S. 500 (2006) ...........34 Badham Eu, 694 Supp. 664 (N.D. Cal. 1988), appeal dismissed, 488 U.S. 804 (1988).......................................35, Baker Carr, 369 U.S. 186 (1963) ......... 20, 21, 23, Benisek Mack, Supp. 516 (D. Md. 2014), aff 584 App 140 (4th Cir. 2014), rev sub nom. Shapiro McManus, 136 Ct. 450 (2015) ..........................5 Bethune-Hill Va. State Bd. Elections, 141 Supp. 505 (E.D. Va. 2015), prob. juris. noted, 136 Ct. 2406 (2016)..... 26-27 Burdick Takushi, 504 U.S. 428 (1992) .................32 Burns Richardson, 384 U.S. (1966) ...........21, Crawford Marion County Election Bd., 553 U.S. 181 (2008).............................................32 Davis Bandemer, 478 U.S. 109 (1986)..................................... passim Davis Mann, 377 U.S. 678 (1964) .........................24 Evenwel Abbott, 136 Ct. 1120 (2016) ..........21, vii Fletcher Lamone, 831 Supp. 887 (D. Md. 2011), aff 133 Ct. (2012) ....................... Fortson Dorsey, 379 U.S. 433 (1965).....................12 Gaffney Cummings, 412 U.S. 735 (1973) .............13 Gorrell Malley, No. WDQ-11-2975, 2012 U.S. Dist. LEXIS 6178 (D. Md. Jan. 19, 2012) ..........................................5 Gray Sanders, 372 U.S. 368 (1963) ......................21 Hicks Miranda, 422 U.S. 332 (1975) ....................11 Kidd Cox, No. 1:06-CV-0997-BBM, 2006 U.S. Dist. LEXIS 29689 (N.D. Ga. May 16, 2006) .....................................35 Lucas Colorado General Assembly, 377 U.S. 713 (1964).............................................24 LULAC Perry, 548 U.S. 399 (2006) ................14, League Women Voters Quinn, No. 1:11-cv-5569, 2011 U.S. Dist. LEXIS 125531 (N.D. Ill. Oct. 27, 2011), aff 132 Ct. 2430 (2012) ...............................35 Maryland Comm. for Fair Representation Tawes, 377 U.S. 656 (1964) ................................23 viii Morrison Nat Australia Bank Ltd., 561 U.S. 247 (2010).............................................35 Olson Malley, No. WDQ-12-0240, 2012 U.S. Dist. LEXIS 29917 (D. Md. Mar. 2012)............................................5 Parrott Lamone, No. GLR-15-1849, 2016 U.S. Dist. LEXIS 112736 (D. Md. Aug. 24, 2016) ..........................................1 Pope Blue, No. 3:92cv71-P (W.D.N.C. Feb. 28, 1992) ....................................36 Reed Elsevier, Inc. Muchnick, 559 U.S. 154 (2010).............................................34 Reynolds Sims, 377 U.S. 533 (1964)..................................... passim Roman Sincock, 377 U.S. 695 (1964) .............. 23-24 Session Perry, 298 Supp. 451 (E.D. Tex. 2004) ................18 Shapiro McManus, 136 Ct. 450 (2015).............................................9 Shapiro McManus, No. 1:13-cv-03233, 2016 U.S. Dist. LEXIS 112732 (D. Md. Aug. 24, 2016) ............................ 15, 35, Steel Co. Citizens for Better Environment, 523 U.S. (1998)...............................................34 U.S. Dept. Commerce Montana, 503 U.S. 442 (1992).............................................22 Vera Richards, 861 Supp. 1304 (S.D. Tex. 1994), aff sub nom. Bush Vera, 517 U.S. 952 (1996) .....................17 Vieth Jubelirer, 541 U.S. 267 (2004) ............ passim Wesberry Sanders, 376 U.S. (1964)............ passim Whitford Nichol, No. 15-cv-421-bbc, 2016 U.S. Dist. LEXIS 47048 (W.D. Wis. Apr. 2016) ................... 15, 30, 35, WMCA, Inc. Lomenzo, 377 U.S. 633 (1964) ..........23 Yick Hopkins, 118 U.S. 356 (1886) .................31 STATE CASES Parrott McDonough, (Md. Ct. Spec. App. July 23, 2014) (available https://goo.gl/cQa67S) cert. denied, 440 Md. 226 (2014) ..........................5 Whitley State Bd. Elections, 429 Md. 132 (2012) ...............................................5 CONSTITUTIONAL PROVISIONS U.S. CONST. art. cl. ............................... passim U.S. CONST. amend XIV, ............................. passim STATUTES U.S.C. 1253 ..........................................................2 U.S.C. 2284 ......................................................1, U.S.C. 10301 ......................................................28 OTHER AUTHORITIES Theodore Rave, Politicians Fiduciaries, 126 HARV. REV. 671 (Jan. 2013) .....................16 Daniel Polsby Robert Popper, The Third Criterion: Compactness Procedural Safeguard against Partisan Gerrymandering, YALE POL REV. 301 (1991) ... 18, 25, 26, Edward Foley, Due Process, Fair Play, and Excessive Partisanship: New Principle for Judicial Review Election Laws, CHI. REV. (forthcoming 2017) ...............16 Edward Glaeser Bryce Ward, Myths and Realities American Political Geography, available Ec. Persp. 119 (2005) .............30 Erin Cox, Gerrymander Meander Highlights Twisted District, Baltimore Sun, Sept. 19, 2014, https://goo.gl/2ctKg3 ............................................3 JAMES MADISON, NOTES THE DEBATES THE FEDERAL CONVENTION 1787 (Adrienne Koch ed., Ohio University Press, 1966) (1787) ...........................19 Jeff Guo, Welcome America Most Gerrymandered District, New Republic, Nov. 2012, https://goo.gl/fL7OLq .......................................3, JOHN LOCKE, TWO TREATISES GOVERNMENT (J.M. Dont Sons 1924) (1690) .........................18 Len Lazarick, Speaker Busch Did Not Like Redistricting Either, MARYLAND REPORTER, Sep. 15, 2013, https://goo.gl/k2iVhC ........................................4, xii MARVIN MEYERS, THE MIND THE FOUNDER: SOURCES THE POLITICAL THOUGHT JAMES MADISON (1981) .......................................19 Micah Altman, Modeling the Effect Mandatory District Compactness Partisan Gerrymanders, POL. GEOGRAPHY 989 (1998) ....................29, Note: New Map: Partisan Gerrymandering Federalism Injury, 117 Harv. Rev. 1196 (Feb. 2004)....................18 STEPHEN SHAPIRO AL., SUPREME COURT PRACTICE (10th ed. 2013) ........11 The Federalist No. (James Madison) (Clinton Rossiter ed., 1961) ................................19 The Federalist No. (Alexander Hamilton) (Clinton Rossiter ed., 1961) ................................19 Why Politicians Gerrymander?, The Economist, Oct. 27, 2013, https://goo.gl/HRyGhe...........................................3 JURISDICTIONAL STATEMENT Appellants Neil Parrott, Ann Marvin, Lucille Stefanski, Eric Knowles, Faith Loudon, Matt Morgan, Ellen Sauerbrey, and Kerinne August respectfully submit this jurisdictional statement regarding their appeal decision the United States District Court for the District Maryland, sitting district court three judges. Appellants ask that the Court note probable jurisdiction and set the case for oral argument. OPINION BELOW The district court decision dismissing the complaint, although not yet reported the Federal Supplement, reprinted the Appendix App. App. 3a-13a, and available Parrott Lamone, No. GLR-15-1849, 2016 U.S. Dist. LEXIS 112736 (D. Md. Aug. 24, 2016). JURISDICTION This case was properly before three-judge district court pursuant U.S.C. 2284(a) because involves constitutional challenge congressional redistricting plan. The United States District Court for the District Maryland entered Order August 24, 2016, granting Defendants motion dismiss Appellants complaint, for reasons stated accompanying opinion. App. 14a-15a, citing App. 3a-13a. Appellants timely led their notice appeal August 29, 2016. App. 1a-2a. This Court has appellate jurisdiction pursuant U.S.C. 1253. CONSTITUTIONAL PROVISIONS INVOLVED Article the United States Constitution provides, relevant part: The House Representatives shall composed Members chosen every second Year the People the several States U.S. CONST. art. cl. The Fourteenth Amendment the United States Constitution provides, relevant part: State shall deprive any person life, liberty, property, without due process law U.S. CONST. amend XIV, STATEMENT This direct appeal from three-judge district court decision dismissing Appellants constitutional challenge Maryland congressional districts. For the reasons set forth below, the Court should note probable jurisdiction and set this case for oral argument, because Appellants have stated claim for partisan gerrymandering under Article and the Due Process Clause the Fourteenth Amendment, and because this appeal raises substantial and unsettled issue redistricting law. the alternative, the Court should summarily reverse the district court decision and remand for full consideration the merits, because the district court fundamentally erred dismissing the complaint jurisdictional grounds. Factual Background. October 20, 2011, the Maryland General Assembly passed Senate Bill creating the congressional districts issue this lawsuit. This bill reconfigured Maryland congressional districts into extraordinary shapes, which have since become objects derision. Maryland Third Congressional District, for example, has been dubbed America Most Gerrymandered District and described Rorschach test, crime scene blood spatter, monstrosity and the Pinwheel Death, and, federal court, broken-winged pterodactyl, lying prostrate across the center the State. Fletcher Lamone, 831 Supp. 887, 902 (D. Md. 2011) (three-judge court), aff 133 Ct. (2012); see App. 20a-21a. well-known, mathematical measure geographical compactness confirms that the Third District one the most contorted the United States. App. 32a. According Jeff Guo, Welcome America Most Gerrymandered District, New Republic, Nov. 2012, https://goo.gl/fL7OLq. Erin Cox, Gerrymander Meander Highlights Twisted District, Baltimore Sun, Sept. 19, 2014, https://goo.gl/2ctKg3. Why Politicians Gerrymander?, The Economist, Oct. 27, 2013, https://goo.gl/HRyGhe. that same measure, Maryland has the least compact congressional districts the nation. Id.; see Guo, supra note (geospatial analysis firm ranks Maryland the most gerrymandered state. Criticism Senate Bill has been universal. Even Michael Busch, Speaker the Maryland House delegates and one the designers the redistricting bill, said that did not like the redistricting, and stated (or understated) that could have done better job keeping communities together.4 Yet the reason Maryland congressional district plan was adopted, notwithstanding any such reservations, plain. Senate Bill political gerrymander, created and passed Democrats the Maryland legislature way diminish the potential clout Republican voters. App. 25a; see Fletcher, 831 Supp. 905 clear that the plan adopted the General Assembly Maryland is, any reasonable standard, blatant political gerrymander (Titus, J., concurring); see Lazarick, supra note (Speaker Busch admitted that the plan was drawn please incumbent Democrats). Like most such gerrymanders, works concentrating voters the opposing party few districts possible, while engineering majorities favorable the mapmakers the rest the districts. App. 24a. Maryland congressional gerrymander has been singularly effective achieving its political purpose. Len Lazarick, Speaker Busch Did Not Like Redistricting REPORTER, Sep. 15, 2013, Either, MARYLAND https://goo.gl/k2iVhC. the court Fletcher observed, Maryland Republican Party regularly receives 40% the statewide vote but might well retain only 12.5% [or one out eight] the congressional seats. 831 Supp. 903; App. 25a; see also Lazarick, supra note (redistricting helped defeat incumbent Republican Rep. Roscoe Bartlett 2012). short, Senate Bill may the most extreme, and effective, congressional gerrymander the nation. Unsurprisingly, has been the subject near-constant litigation.5 II. Appellants Claims This Action. Appellants are Maryland voters who have filed constitutional challenge Maryland notorious gerrymander. App. 16a. Article the Constitution requires that members the House Representatives shall chosen the People the several States. Appellants complaint alleges that Senate Bill See Fletcher; Gorrell Malley, No. WDQ-11-2975, 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 McManus, No. 1:13-cv-03233, 2016 U.S. Dist. LEXIS 112732 (D. Md. Aug. 24, 2016) (three-judge court); 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). violates this provision transferring the power select congressional representatives from Maryland voters the legislators who drew and adopted Maryland congressional district plan. The means used effect this transfer power, moreover, are purely mechanical. Because voters not choose where live suit the purposes legislative mapmakers, those seeking gerrymander distort district boundaries create districts that contain the mix voters that best achieves their partisan goals. App. 27a. This procedure has nothing with traditional democratic practices, like communicating with and persuading voters, taking policy positions, fundraising and contributing. this way, gerrymandering resembles another purely mechanical tactic that diminished voters control over the outcome elections: the malapportionment district populations. Maintaining one own supporters underpopulated districts magnifies their political clout when compared voters who reside overpopulated districts. This Court repeatedly has recognized this point its many decisions holding malapportioned districts unconstitutional.6 Like gerrymandering, malapportionment must understood way circumvent, rather than practice, democracy. Yet these two anti-democratic tricks are connected even more immediate way. The positive effect that population equality has See cases discussed infra pp. 20-24. ensuring electoral equality between voters different districts can undone simply creating noncompact districts like those that result from the technique gerrymandering. Stated differently, the power control outcomes that legislators lost result this Court one-person-one-vote jurisprudence can regained gerrymandering. Appellants allege their complaint, Maryland congressional gerrymander circumvents the oneperson-one-vote standard, frustrates its purpose, and diminishes its efficacy. App. 26a. Accordingly, insofar the one-person, one-vote standard constitutionally required, some minimum level district compactness must well. Appellants logically grounded their gerrymandering challenge the same constitutional provision that has been held proscribe congressional malapportionment, the the People clause Article 2.7 The complaint also alleges that Maryland noncompact districts violate the Due Process Clause the Fourteenth Amendment imposing undue burdens Appellants fundamental voting rights. App. 28a-29a, 38a. ignor[ing] political boundaries, fragment[ing] political communities interest, and confus[ing] voters, gerrymandered districts impose unique burdens the candidates and voters those districts. App. 28a-29a. consequence, voters gerrymandered districts have harder time staying informed about elections. App. 29a. Because these burdens are inflicted public purpose and for good See Wesberry Sanders, 376 U.S. 7-8 (1964). reason, Maryland district plan burdens Appellants right vote violation the Due Process Clause. App. 29a, 38a. Appellants claims this action differ important respects from those asserted other lawsuits challenging Maryland congressional districts. particular, Appellants are not asserting violation the Equal Protection Clause and are not proceeding under the jurisprudence Davis Bandemer, 478 U.S. 109 (1986). Bandemer, this Court held that plaintiff could state justiciable claim for partisan gerrymandering under the Equal Protection Clause the Fourteenth Amendment. 478 U.S. 113. Yet majority the Court could not agree the appropriate standard use adjudicating such claim, and the intervening three decades such standard has emerged. result, claim partisan gerrymandering has ever succeeded under Bandemer. Appellants lawsuit instead adopts new approach partisan gerrymandering, based different constitutional ground. Accordingly, the complaint did not identify Appellants party affiliations, nor did base their claim the premise that they are injured Republicans. Rather, Appellants allege that they are injured voters, because part their power select representatives has been exercised the Maryland legislature, and because their fundamental right vote has been burdened the electoral harms inflicted Maryland district plan. III. Procedural Background. Appellants are eight registered Maryland voters, one from each congressional district the State. App. 16a, 17a-19a. They filed suit the United States District Court for the District Maryland, challenging Senate Bill violation Article and the Due Process Clause the Fourteenth Amendment. Appellants sought declaratory judgment that Senate Bill was unconstitutional gerrymander, permanent injunction against its use future congressional elections, and related relief. Appellants also moved pursuant U.S.C. 2284 convene three-judge panel hear the case. Appellees filed motion dismiss the complaint and also opposed the motion convene threejudge panel. Following this Court decision Shapiro McManus, 136 Ct. 450 (2015), however, Appellees withdrew their opposition, and district court three judges subsequently was appointed. August 24, 2016, the district court granted the motion dismiss. Appellees argued that Appellants lack standing because they allege generalized grievance behalf all Maryland voters. App. 6a. The district court acknowledged that Appellants consistently allege they are asserting harm that all Maryland voters endure. App. 9a. But the district court observed that the deprivation the right vote can constitute injury fact notwithstanding that the injury widespread (App. 9a), and found that this pleading stage, this harm adequately concrete and particularized. App. 10a. However, the district court went state that Appellants must assert more than concrete and particularized injury they must also allege invasion legally protected interest. App. 10a (citations omitted). The district court stated that there was case which court expressly held that the Constitution protects the right reside district that has not been mechanically manipulated transfer the power select representatives away from the people. Id. Rejecting the Appellants argument regarding the malapportionment cases, the district court stated that nothing the language the One Person, One Vote Cases suggests that the Court should apply those cases claims not asserting unequal population. App. 12a. The district court concluded that Appellants had not sufficiently alleged standing assert their claims because have they have not alleged invasion legally protected interest, and dismissed the complaint without considering the merits. Id. This timely appeal followed. REASONS FOR NOTING PROBABLE JURISDICTION The Court must decide whether should note probable jurisdiction and set this case for oral argument, whether should instead summarily the district court decision. The Court notes probable jurisdiction direct appeals and sets the case for oral argument long the question presented substantial one. Hicks Miranda, 422 U.S. 332, 344 (1975). That standard not demanding. Plenary review warranted unless after reading the condensed arguments presented counsel the jurisdictional statement and the opposing motion, well the opinions below, the Court can reasonably conclude that there little doubt how the case will decided that oral argument and further brie would waste time. STEPHEN SHAPIRO AL., SUPREME COURT PRACTICE 304 (10th ed. 2013). The Court should grant plenary review here because the question presented substantial. The appeal raises the most important, unsettled constitutional issue the law redistricting and seeks resolve manner consistent with the Court prior decisions. While the Court has recognized that partisan gerrymandering justiciable, and majority Justices have expressed the view that unconstitutional, majority has agreed the appropriate standard for determining whether partisan gerrymander has violated the Constitution. Appellants maintain that excessive partisan gerrymandering, like that display Maryland, violates Article transferring the power select Representatives from the People the several States the government officials who design and approve congressional districts. This anti-democratic ruse contrary the legal principles embodied the Court one person, one vote jurisprudence. Indeed, explained below, the Court equal population rule can nullified practice the noncompact districts used gerrymander. Appellants thus maintain that minimum level district compactness, determined known social science methods, constitutionally required. Appellants arguments have long been anticipated and discussed the Court prior rulings, the individual opinions its members, and the academic literature. Appellants also maintain that the consequential damage inflicted voters for public purpose the process creating gerrymandered districts burdens their fundamental right vote violation the Due Process Clause. Excessive Gerrymandering Both Justiciable and Unconstitutional. Davis Bandemer, 478 U.S. 109, 113 (1986), the Court first held that claim partisan gerrymandering was justiciable. support this conclusion, the plurality opinion cited variety cases where the Court had considered other kinds challenges redistricting. See, e.g., id. 119, citing Fortson Dorsey, 379 U.S. 433, 439 (1965) (rejecting challenge multimember districts, but warning that apportionment scheme that would operate minimize cancel out the voting strength political elements the voting population might not pass[] constitutional muster Gaffney Cummings, 412 U.S. 735, 754 (1973) (upholding bipartisan gerrymander, but observing that what done arranging for elections, achieve political ends allocate political power, not wholly exempt from judicial scrutiny majority the Court Bandemer would have prosecuted claim involving gerrymandering under the Equal Protection Clause the Fourteenth Amendment. There was agreement, however, the correct standard use determining whether particular gerrymander violated the Constitution. the years following that decision, such standard has been found. Although challenges under Bandemer were brought during that time against some the most egregious gerrymanders United States history, including the current Maryland gerrymander,8 such challenge has ever succeeded. Referring the years essentially pointless litigation, plurality Vieth Jubelirer, 541 U.S. 267, 306 (2004), suggested that Bandemer incapable principled application and should overruled. Yet the record failure date also has inspired search for appropriate standards with which judge partisan gerrymandering, both within and without the framework set forth Bandemer. The dissenters Vieth proposed various standards See Fletcher, 831 Supp. 903-04 (rejecting Bandemer challenge Maryland congressional district plan). for considering gerrymandering claims under the Equal Protection Clause. See 541 U.S. 339 (Stevens, J., dissenting) (based whether partisan considerations predominated over neutral principles); id. 347-51 (Souter, J., dissenting) (burden-shifting standard based meeting fivepart test); id. 367 (Breyer, J., dissenting) (weighing the risk partisan entrenchment, deviations from traditional districting criteria, and the validity any justification); see also LULAC Perry, 548 U.S. 399, 475-76 (2006) (Stevens, dissenting) (burden-shifting standard based showing partisan purpose and effect). Justice Kennedy rejected the standards proposed the dissenters. Vieth, 541 U.S. 308 (Kennedy, J., concurring the judgment). However, also rejected the plurality view that gerrymandering not justiciable and argued that manageable standard could found. Id. 311. further suggested that [w]here alleged that gerrymander had the purpose and effect imposing burdens disfavored party and its voters, the First Amendment may offer sounder and more prudential basis for intervention than does the Equal Protection Clause. Id. 315. Vieth left the law gerrymandering parlous condition. Even the members the plurality acknowledged the incompatibility severe partisan gerrymanders with democratic principles and conceded that severe partisan gerrymanders violate the Constitution, although they did not believe courts could address that problem. Id. 292 (plurality opinion); see id. 293 (commenting the argument that excessive injection politics unlawful. is, and does our opinion assume. Thus, all nine justices Vieth concurred that severe partisan gerrymandering was unconstitutional, while majority justices concluded that such gerrymandering was justiciable.9 Yet, that case, Pennsylvania congressional gerrymander was allowed stand. Finding judicially manageable standard that would allow the Court address the problem excessive partisan gerrymandering the single most important piece unfinished judicial business the law redistricting. Recognizing this fact, both litigants and interested observers have explored the applicability variety constitutional provisions and theories the problem partisan gerrymandering. See, e.g., Shapiro, 2016 U.S. Dist. LEXIS 112732 *39-41 (applying multi-part test conclude that plaintiffs stated claim for intentional gerrymandering violation the First Amendment and Article 2); Whitford Nichol, No. 15-cv-421-bbc, 2016 U.S. Dist. LEXIS 47048, *11 (W.D. Wis. Apr. 2016) (denying motion for summary judgment where plaintiffs sought show violation the Fourteenth Amendment analyzing partisan symmetry wasted votes Indeed, neither Vieth nor any subsequent case ever has overruled Bandemer holding that partisan gerrymandering justiciable. See LULAC Perry, 548 U.S. 399, 414 (2006) (while plurality the Court Vieth would have held such challenges nonjusticiable political questions, majority declined so. not revisit the justiciability holding (citations omitted). ascertain efficiency gap see Edward Foley, Due Process, Fair Play, and Excessive Partisanship: New Principle for Judicial Review Election Laws, CHI. REV. (forthcoming 2017) (draft available http://ssrn.com/abstract=2815892) (suggesting that the Due Process Clause the proper basis for gerrymandering claim); Theodore Rave, Politicians Fiduciaries, 126 HARV. REV. 671, 719, 721-22 (Jan. 2013) (suggesting that fiduciary duty loyalty proscribing partisan gerrymandering reasonably could grounded the Equal Protection Clause, the Due Process Clause, the First Amendment, the Elections Clauses, the Guarantee Clause). This appeal raises and addresses this important, unresolved constitutional issue. II. Appellants Have Stated Constitutional Claim For Partisan Gerrymandering. Gerrymandering Unconstitutionally Transfers Power from Voters Legislators. The Constitution provides that [t]he House Representatives shall composed Members chosen every second Year the People the several States. U.S. CONST. art. The essence Appellants claim that the gerrymandering Maryland congressional districts apparent Senate Bill allows Maryland legislators steal for themselves significant portion the power select congresspersons, which power should only exercised the People. understand this claim, important view political gerrymandering the proper context. While the motives those engaged such gerrymandering are, definition, partisan, misleading characterize gerrymandering primarily that motive. Gerrymandering more than partisan act. way for government agents take power from private citizens the case gerrymandering, the power select legislators. Appellants have their complaint, [g]errymandering not primarily something that Democrats and Republicans each other. Gerrymandering something that legislators and other state actors voters. App. 24a. Courts and commentators have long recognized the illicit transfer power away from voters and legislators and mapmakers that inherent political gerrymandering. one court put it, the final result tactical redistricting seems not one which the people select their representatives, but which the representatives have selected the people. Vera Richards, 861 Supp. 1304, 1334 (S.D. Tex. 1994) (three-judge court), aff sub nom. Bush Vera, 517 U.S. 952 (1996). Justice Stevens expounded this point Vieth: The danger partisan gerrymander that the representative will perceive that the people who put her power are those who drew the map rather than those who cast ballots, and she will feel beholden not subset her constituency, but part her constituency all. The problem, simply put, that the will the cartographers rather than the will the people will govern. Judge Ward recently wrote, extreme partisan gerrymandering leads system which the representatives choose their constituents, rather than vice-versa. Session Perry, 298 Supp. 451, 516 (E.D. Tex. 2004) (concurring part and dissenting part). 541 U.S. 331-32 (Stevens, J., dissenting) (footnotes omitted), citing Note: New Map: Partisan Gerrymandering Federalism Injury, 117 Harv. Rev. 1196 (Feb. 2004) ample evidence demonstrates that many todays congressional representatives owe their election not the People the several states but the mercy state legislatures see Daniel Polsby Robert Popper, The Third Criterion: Compactness Procedural Safeguard against Partisan Gerrymandering, YALE POL REV. 301, 304309 (1991) (describing gerrymandering the problem self-constituting legislatures); see generally JOHN LOCKE, TWO TREATISES GOVERNMENT, 212, 216 (J.M. Dont Sons 1924) (1690) (because the constitution the legislative the first and fundamental act the society without which one can have authority making laws, then others than those whom the society hath authorised choose, another way than what the society hath prescribed, those chosen are not the legislative appointed the people. Appellants are right ground their claim the plain language Article Gerrymandering straightforward violation the requirement that representatives chosen the People. There also evidence that the Founders defined the People those residing particular (geographical) place. They did order ensure that all the peoples interests were appropriately represented. the Constitutional Convention 1787, James Madison opposed qualification based landed property because would have favored landed interests the expense the interests rights every class and the people every part the Community. JAMES MADISON, NOTES THE DEBATES THE FEDERAL CONVENTION 1787 375 (Adrienne Koch ed., Ohio University Press, 1966) (1787). This suggests that Madison notion community encompassed geographic area, which would not subjected manipulation that would reduce the number classes, interests, parts represented. More direct evidence comes from Madison letter friend 1785 regarding the Kentucky constitution. Discussing the classing electors for purposes representation, Madison stated that cannot otherwise done than geographical description Counties. MARVIN MEYERS, THE MIND THE FOUNDER: SOURCES THE POLITICAL THOUGHT JAMES MADISON (1981). Alexander Hamilton also assumed that electoral unit comprised unedited geographical area. Responding the notion that faction consisting the wealthy and the wellborn would come dominate the legislature through abuse the voting process, Hamilton emphasized the randomizing nature geographical communities: Are the wealthy and the well-born, they are called, confined particular spots the several States? are they, the contrary, scattered over the face the country avarice chance may have happened cast their own lot that their predecessors? The Federalist No. 370-71 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also No. 351 (James Madison) The Court Malapportionment Cases Necessarily Forbid the Manipulation District Boundaries Required Extreme Gerrymandering. Appellants gerrymandering claim analog to, and necessary consequence of, the Court one person, one vote jurisprudence. The malapportionment cases describe constitutional violation that arises whenever the purely technical attributes legislative district are severely manipulated allow legislators way enhance their odds reelection without having convince voters vote for them. Baker Carr, 369 U.S. 186 (1963), the Supreme Court first held that justiciable constitutional claim could based the fact that legislative district populations were malapportioned. The Court subsequently applied this reasoning federal congressional districts Wesberry Sanders, 376 U.S. (1964). striking down Georgia malapportioned congressional district plan, the Court held that, construed its historical context, the command Art. that Representatives chosen the People the several States means that nearly practicable one man vote congressional election worth much another Id. 7-8 (citations omitted); see also Reynolds Sims, 377 U.S. 533, Who are the electors the federal representatives? Not the rich, more than the poor The electors are the great body the people the United States. 568 (1964) (invalidating Alabama state districts under the Equal Protection Clause). The rules set forth Baker, Wesberry, and Reynolds have since become bedrock requirements American constitutional law. The principle that they embody often described one political equality summarized the phrase, one person, one vote. See, e.g., Gray Sanders, 372 U.S. 368, 381 (1963) The conception political equality from the Declaration Independence, Lincolns Gettysburg Address, the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing one person, one vote. Yet, properly understood, these seminal cases stand for more than that. They stand for the principle that legislators and their agents may not manipulate districts order arrogate themselves the power reserved the people choosing their legislators. important recognize that, despite their references political equality and equalizing the worth weight voters votes, Baker, Wesberry, and Reynolds not actually mandate equality votes any particular sense. This point strikingly illustrated the fact that, while district populations must equal, the Court has never held that any particular population base must used make that determination. Compare Evenwel Abbott, 136 Ct. 1120, 1132 (2016) (Texas redistricting based total population was constitutionally valid); and Burns Richardson, 384 U.S. 73, 93-94 (1966) (allowing use registered voter population the facts before the Court). Moreover, the Court has never required states include aliens, transients, short-term temporary residents, persons denied the vote for conviction crime their apportionment bases. Burns, 384 U.S. 92. course, choosing different population bases including excluding the various subpopulations mentioned could dramatically alter the measured population equality voter districts. just one example, state that reapportioned the basis total population could have districts with widely different voter populations, which would belie its claim adhere the principle one person, one vote. See Evenwel, 136 Ct. 1125 (voter populations deviated more than 40%). Apparently, the equal population standard does not mandate any particular kind population equality, long some defined population equalized. This fact proves that the real purpose the equal population standard prophylactic: practical safeguard rather than absolute, theoretical norm. What designed prevent the legislature abuse the redistricting process for partisan advantage other words, cheating.11 The kind cheating that malapportionment allows brutally simple. Any party that can create take the same token, circumstances where the possibility partisan cheating remote, the Court has tolerated wide disparities district populations essentially harmless. See U.S. Dept. Commerce Montana, 503 U.S. 442, 464 (1992) (upholding the statutory method apportioning representatives among states even though led large differences between district populations, part because the method used was apparently good-faith choice that did not systematically favor[] particular party advantage districts with fewer voters has enormous electoral advantage. can win more seats with fewer votes. See Vieth, 541 U.S. 331 (Stevens, J., dissenting) (discussing population inequalities England rotten boroughs The early reapportionment decisions never lost sight the political self-dealing inherent malapportionment. They were especially concerned that legislators representing minority voters could seize, and retain, power. See, e.g., Baker, 369 U.S. 258-59 (Clark, concurring) the legislative policy has riveted the present seats the Assembly their respective constituencies, and the votes their incumbents reapportionment any kind prevented Reynolds, 377 U.S. 547 (under proposed legislation, the smallest counties would have majority the senatorial seats, and senators elected only about 14% the States population could prevent the submission the electorate any future proposals amend the State Constitution Maryland Committee for Fair Representation Tawes, 377 U.S. 656, 669-70 (1964) (reapportionment bills failed pass because opposition legislators from the less populous counties, constitutional amendment was unavailable, practical matter and seats constitutional convention would based the allocation seats the allegedly malapportioned General Assembly. WMCA, Inc. Lomenzo, 377 U.S. 633, 648 (1964) The most heavily populated counties New York, with about 73.5% the total citizen population have only 65.5% the membership the Senate); Roman Sincock, 377 U.S. 695, 707 (1964) Under the revised apportionment [a] majority the members the House would elected from districts with only about 28% the State total population Lucas Colorado General Assembly, 377 U.S. 713, 728-29 (1964) (Denver and adjacent counties contain[ing] about one-half the State total 1960 population are given only out senators. Davis Mann, 377 U.S. 678, 689 (1964) adequate political remedy obtain legislative reapportionment appears exist Virginia. Like malapportionment, extreme gerrymandering mechanical manipulation which legislators may influence the outcome district elections without having convince voters vote for them. The means employed are more complicated, typically involving the use dedicated computer software. But these means nonetheless consist more than technical adjustments district boundaries. Appellants maintain that the principles embodied Baker, Wesberry, and Reynolds render constitutionally infirm any mechanical stratagem involving electoral districts that allows legislators usurp the peoples role choosing legislators. Malapportionment one such technique. Gerrymandering another. Gerrymandering Undoes the Prophylactic Effect the Equal Population Requirement. Gerrymandering and malapportionment share more than anti-democratic intent. The two practices are connected more direct way. Simply stated, the grossly noncompact districts characteristic extreme gerrymandering can destroy the prophylactic restraint that the one person, one vote equal population standard imposes legislative partisans. This fact can easily demonstrated.12 Imagine that Maryland mapmakers were not constrained draw geographic districts all. Suppose instead that each congressional district could comprise any set residents living anywhere the State. With eight representatives, Maryland would entitled define eight such clusters residents. Suppose well that these clusters had equal populations. evident that the party that gets select the residents these districts could engage particularly ruthless kind partisan redistricting. the party controlling the legislature had, say, 51%-49% statewide edge over its rival, could then construct eight districts where had the same 51%49% advantage, and win every congressional election the State. Requiring mapmakers draw electoral districts based local, geographic areas, and requiring those districts have equal populations, frustrates such tactic, because local majorities tend differ from statewide majorities. But noncompact districts tilt the playing field back towards self-serving partisans. districts are allowed become more and more distorted the interest specially selecting the right mix voters suit partisan mapmakers, See discussion Polsby Popper, supra 18, 331. electoral district plans start resemble our hypothetical world where there are district boundaries all, and mapmakers can select any voters anywhere the State. Ultimately, the one person, one vote standard can rendered meaningless without the aid anti-gerrymandering principle. consequence, just the one person, one vote standard necessary inference from Article the Constitution, anti-gerrymandering principle necessary inference from that same clause. Minimum Level District Compactness the Appropriate Constitutional Standard. The constitutional standard identified Appellants would enjoin the use congressional districts that not meet minimum level geographic compactness, determined wellknown social science metrics. This limited standard the correct one. Appellants propose the use particular measure geographic compactness. Variously known the perimeter, Polsby-Popper, modified Schwartzberg test, one the most widely used such measures and regularly relied federal courts. See 30a-31a; Polsby Popper, supra 18, 348-51; Vieth, 541 U.S. 349 (Souter, J., dissenting) (suggesting that perimeter and other measures could incorporated test for partisan gerrymandering); Bethune-Hill Va. State Bd. Elections, 141 Supp. 505, 552-53 and passim (E.D. Va. 2015) (three-judge court), prob. juris. noted, 136 Ct. 2406 (2016) (applying PolsbyPopper alleged racial gerrymanders). This measure automatically calculated most redistricting software, including, believed, the program used draw Maryland congressional districts. App. 30a.13 requirement that congressional districts could not fall below some minimal level compactness will prevent the worst kinds gerrymandering. explained the complaint, voters not choose where live suit the purposes legislative partisans, effective gerrymandering requires mapmakers distort district boundaries create districts that contain the mix voters that best achieves their partisan goals. App. 27a. restriction the more extreme forms such distortions would proscribe the gerrymanderers primary tool. like criminal law proscribing the use burglars tools. See 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). Although Appellants argue favor particular standard compactness, there are other measures that effectively could used for the same purpose. See Polsby Popper, supra 18, 339-351 (reviewing workable compactness standards). Anticipating Appellees arguments, important note all the things that Appellants standard not. not constitutional requirement that voting districts compact, and does not create confer constitutional right reside compact district. Voting districts would, and many cases should, adjusted account for political boundaries, communities interest, even incumbent interests, and, course, for any requirements otherwise imposed federal voting law, including the anti-discrimination standards the Voting Rights Act. See U.S.C. 10301. Like the one person, one vote standard, the antigerrymandering standard would proscribe only extreme noncompactness, and would automatically, presuming that the risks posed democratic practice are simply too great justified. Nor have Appellants proposed magic bullet that would end all gerrymandering. fact, legislators could still engage whatever presumably more limited gerrymandering they could accomplish with more compact districts, the theory that such districting just too deep the political thicket addressed courts. Indeed, Appellants limited anti-gerrymandering principle claim would not require courts review most districting decisions. But would proscribe Maryland Third Congressional District. final matter, the suggestion has been made scholarly articles and repeated various opinions that compactness criterion might have systematic partisan tendency. the supporters one party (postulated the Democratic Party) were more densely concentrated areas where they predominated than supporters the other party were those areas where they predominated, rigorous compactness requirement could concentrate the members the first party their electoral detriment. See, e.g., Micah Altman, Modeling the Effect Mandatory District Compactness Partisan Gerrymanders, POL. GEOGRAPHY 989 (1998), cited Vieth, 541 U.S. 309 (Kennedy, J., concurring the judgment) (describing article explaining that compactness standards help Republicans because Democrats are more likely live high density regions Any such consideration irrelevant Appellants proposed constitutional standard here, because they not seek require that all districts compact. Rather, explained above, Appellants would ask courts enjoin only extremely noncompact districts. And scholarly article empirical study has ever suggested that proscribing the most egregiously noncompact districts would have systematic partisan effect. any event, such important factual matters should not presumed motion dismiss, but should await proof trial. That said, hard think any other unproven speculation the social science literature that has gotten much traction Mr. Altman suggestions about the potential effect district compactness. his 1998 article, Mr. Altman did not survey any actual partisan populations the United States. Rather, merely ran tests hypothetical checkerboard composed black and white squares with the help computer, and concluded that such partisan effect was possible. POL. GEOGRAPHY 1002. Any assertion that such effect likely found the real world rank speculation. Indeed, just this year, district court referred contrary empirical evidence suggesting that Democrats and Republicans Wisconsin have comparable spatial distributions. Whitford, 2016 U.S. Dist. LEXIS 47048 *20; see Plaintiffs Opposition Defendants Motion for Summary Judgment 11-12, Whitford Nichol, No. 15-cv-421-bbc, (W.D. Wis. Jan. 25, 2016), ECF No. the isolation index for Democratic and Republican voters, which indicates, for the average Democratic Republican voter, what share his her fellow county residents are also Democrats Republicans, was generally equal, both across time and recently), citing Edward Glaeser Bryce Ward, Myths and Realities American Political Geography, available Ec. Persp. 119, 122-23 (2005). course, Appellants not seek resolution this factual issue now, but simply maintain that they should have the opportunity trial show that there such differential effect. Appellants practical, limited standard workable and judicially manageable way support the efficacy the equal population requirement, prevent legislators from appropriating the power select congressional representatives, and end extreme partisan gerrymandering. III. Gerrymandering Violates Appellants Due Process Rights. Especially since the right exercise the franchise free and unimpaired manner preservative other basic civil and political rights, any alleged infringement the right citizens vote must carefully and meticulously scrutinized. Reynolds, 377 U.S. 562; Yick Hopkins, 118 U.S. 356, 370 (1886) (voting regarded fundamental political right, because preservative all rights. Appellants allege that the noncompact districts resulting from Maryland gerrymander violate the Due Process Clause burdening Appellants fundamental voting rights. App. 28a-29a, 38a. Maryland district plan ignores political boundaries and fragments political communities interest, and confuse[s] voters regarding such basic matters which district they reside in, who represents them, who running for office their district, and where they vote. App. 28a. Gerrymandered districts make harder for candidates and their political campaigns use mass media target their potential voters, which raises the costs campaigning and further confuses voters who running for office their districts. App. 28a-29a. Such districts also compel candidates expend resources educate voters about the candidates and the issues their districts and cost more travel and campaign in. App. 29a. result, voters gerrymandered districts have harder time staying informed about elections. Id. These burdens are inflicted for public purpose. 29a. App. The rigorousness [the Court inquiry into the propriety state election law depends upon the extent which challenged regulation burdens First and Fourteenth Amendment rights. Burdick Takushi, 504 U.S. 428, 434 (1992). [W]hen those rights are subjected severe restrictions, the regulation must narrowly drawn advance state interest compelling importance. Id. (citations omitted). Ordinary and widespread burdens, such those requiring nominal effort everyone, are not severe. Crawford Marion County Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring) (citations omitted). Such burdens call[] for application deferential important regulatory interests standard. Id. (citations omitted). Burdens are severe they beyond the merely inconvenient. Id. (citations omitted). stated the complaint, the noncompact districts Maryland gerrymandered district plan inflict number electoral burdens Appellants. Whether these burdens are ultimately determined severe ordinary, Appellants allegations clearly state claim for violation their rights under the Due Process Clause. REASONS FOR SUMMARILY REVERSING AND REMANDING The district court also erred dismissing the complaint for lack Article III standing. Appellants respectfully request, the alternative, that the Court summarily reverse the district court decision and remand this case for full consideration the merits Appellants claims. the decision below, the district court found that the injury Appellants alleged was adequately concrete and particularized. App. 10a. The district court further stated, however, that court had expressly held that the Constitution protects the right reside district that has not been mechanically manipulated transfer the power select representatives away from the people (id.) and that nothing the language the One Person, One Vote Cases suggests that the Court should apply those cases claims not asserting unequal population. App. 12a. The district court concluded that Appellants had not sufficiently alleged standing because they had not alleged invasion legally protected interest, and dismissed their complaint for lack subject-matter jurisdiction. App. 12a. Because dismissed that ground, the district court stated that need not determine whether Appellants state claims upon which relief may granted. Id. This was clear error. Appellants, course, dispute that their claim not supported existing law. Even that were true, however, dismissal that basis dismissal for failure state claim which relief can granted not failure jurisdiction. [T]he absence valid cause action does not implicate subject-matter jurisdiction, which the courts statutory constitutional power adjudicate the case. Steel Co. Citizens for Better Environment, 523 U.S. 83, (1998). previously noted, the Court jurisdiction hear constitutional gerrymandering challenges not doubt. See supra note and accompanying text. The Court repeatedly has emphasized that jurisdictional determination should not conflated with the analysis whether complaint states cause action. The Court has described improper dismissals for lack subject-matter jurisdiction unrefined dispositions and drive-by jurisdictional rulings that should accorded precedential effect. Arbaugh YH Corp., 546 U.S. 500, 511 (2006), citing Steel Co., 523 U.S. 91; see Reed Elsevier, Inc. Muchnick, 559 U.S. 154, 161 (2010) light the important distinctions between jurisdictional prescriptions and claim-processing rules have encouraged federal courts and litigants facilitate clarity using the term jurisdictional only when apposite (citations omitted). sure, nothing the analysis the courts below turned the difference between jurisdictional and merits dismissal, remand the district court may unnecessary, and the Court may simply choose rule the merits appeal. Morrison Nat Australia Bank Ltd., 561 U.S. 247, 254 (2010). But special circumstances counsel against that outcome this case, and suggest that, the Court does not note probable jurisdiction, should remand the case the district court for full determination the merits. Two other cases concerning partisan gerrymandering recently have survived dispositive motions. See Shapiro, 2016 U.S. Dist. LEXIS 112732 (divided district court denying motion dismiss claim based First Amendment); Whitford Nichol, 2016 U.S. Dist. LEXIS 47048 (district court denying motion for summary judgment claim under the Fourteenth Amendment because partisan asymmetry wasted votes). simply not logical that the instant case dismissed for lack jurisdiction while those cases forward. What the district court erroneously asserted here was indisputably true both those cases, namely, that previous court had recognized the right the relief they sought.14 If, the district court stated, the absence Indeed, there long line authority squarely rejecting the First Amendment claim. See, e.g., League Women Voters Quinn, No. 1:11-cv-5569, 2011 U.S. Dist. LEXIS 125531, *14 (N.D. Ill. Oct. 27, 2011), aff 132 Ct. 2430 (2012) (granting motion dismiss such claim); Kidd Cox, No. 1:06-CV-0997BBM, 2006 U.S. Dist. LEXIS 29689, *47 (N.D. Ga. May 16, 2006) (three-judge court) Supreme Court precedent does not support Plaintiffs First Amendment political gerrymandering claim Badham Eu, 694 Supp. 664, 675 (N.D. Cal. 1988), appeal dismissed, 488 U.S. 804 (1988) (rejecting claim that gerrymandering penalize[es] Republican voters solely because their party affiliations, political beliefs and associations such authority grounds for dismissal for lack standing, both Shapiro and Whitford should have been dismissed. Stated another way, just those courts had jurisdiction over the gerrymandering claims before them, the district court here had jurisdiction over Appellants claims.15 any event, this case like Shapiro, Whitford, and all the related scholarship concerning this area the law attempts answer the most important open question the law redistricting: What are the constitutional moorings and the judicial standards for adjudicating claims excessive partisan gerrymandering? Appellants respectfully submit that the district court error improperly designating its action dismissal for contrast, there are cases rejecting Appellants theory, although other plaintiffs have presented different kinds claims under Article For example, number cases relied the language from Wesberry stating that Article means that nearly practicable one vote congressional election worth much another. 376 U.S. 7-8. See, e.g., Badham, 694 Supp. 674 (rejecting plaintiffs argument, based the concept worth, that Republican votes California are worth less than Democratic votes Complaint and Motion for Temporary Restraining Order and Preliminary and Permanent Injunction 32, Pope Blue, No. 3:92cv71-P (W.D.N.C. Feb. 28, 1992) (on file with Appellants) (Article requires that the vote each citizen equally effective and worth much any other vote The difference between the disposition this case and Shapiro more remarkable given that both were decided the same three-judge panel, after oral argument the same day. See Shapiro, 2016 U.S. Dist. LEXIS 112732 *64 (cross-referring oral argument this case). lack jurisdiction more than naming error. Rather, will have negative impact the Court ability resolve the important issues raised this case. The Court well served full treatment the merits trial. Along with any merits decisions other cases, this will provide the Court with the fullest possible exposition the factual and legal issues and the judicial options that these cases present. CONCLUSION Appellants respectfully request that the Court note probable jurisdiction and set this case for oral argument. the alternative, Appellants respectfully request that this Court summarily reverse the decision below and remand this case for full consideration the merits. Respectfully submitted, Robert Popper Counsel Record Chris Fedeli Lauren Burke JUDICIAL WATCH, INC. 425 Third Street Washington, 20024 (202) 646-5172 rpopper@judicialwatch.org Counsel for Appellants October 28, 2016 APPENDICES APPENDIX PLAINTIFFS NOTICE APPEAL THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND, BALTIMORE DIVISION, FILED AUGUST 29, 2016 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND Civil Action No. 15-cv-01849-GLR Neil Parrott, al., Plaintiffs, Linda Lamone, al., Defendants. NOTICE APPEAL Notice given that NEIL PARROTT, ANN MARVIN, LUCILLE STEFANSKI, ERIC KNOWLES, FAITH LOUDON, MATT MORGAN, ELLEN SAUERBREY, and KERINNE AUGUST, Plaintiffs the above-captioned case, hereby file their appeal, pursuant U.S.C. 1253 and 2284, the United States Supreme Court, from the Opinion the Three-Judge Court (ECF No. 30), entered this action August 24, 2016; and from this Court Order (ECF No. 31), entered this action August 24, 2016, granting Defendants motion dismiss for the reasons stated that Opinion. Dated: August 29, 2016 Respectfully submitted, Robert Popper Robert Popper, MDD No. 12607 JUDICIAL WATCH, INC. 425 Third Street SW, Ste. 800 Washington, 20024 Tel: (202) 6465172 Fax: (202) 646-5185 rpopper@judicialwatch.org Counsel for Plaintiffs APPENDIX OPINION THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND, FILED AUGUST 24, 2016 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND Civil Action No. GLR-15-1849 Neil Parrott, al., Plaintiffs, Linda Lamone, al., Defendants. Before Niemeyer, Circuit Judge, and Bredar and Russell, District Judges: OPINION THE THREE-JUDGE COURT Judge Russell wrote the opinion which the Court concluded does not have subject-matter jurisdiction over this action because Plaintiffs not have standing pursue their claims. RUSSELL, District Judge: Plaintiffs Voters challenge the constitutionality Maryland 2011 congressional redistricting law under Article the United States Constitution and the Due Process Clause the Fifth and Fourteenth Amendments. Pending before the Court Defendants Linda Lamone, her official capacity the State Administrator Elections, and David McManus, Jr., his official capacity Chairman the Maryland State Board Elections (collectively, the State Motion Dismiss (ECF No. 7). The Motion ripe for disposition. For the reasons outlined below, the Court will grant the Motion. October 2011, following the 2010 decennial census, the Maryland General Assembly enacted congressional redistricting plan (the Plan establishing the districts used for the election Maryland eight representatives the United States House Representatives. See Md.Code Ann., Elec. Law 701 seq. (West 2016). Following its enactment, the Plan has been subject numerous challenges.2 June 24, 2015, Voters brought the Voters consist one voter from each Maryland eight congressional districts. They include: Neil Parrott, Ann Marvin, Lucille Stefanski, Eric Knowles, Faith Loudon, Matt Morgan, Ellen Sauerbrey, and Kerinne August. See, e.g., Benisek Mack, F.Supp.3d 516 (D.Md.), aff 584 F.App 140 (4th Cir. 2014), cert. granted sub nom. Shapiro Mack, 135 S.Ct. 2805 (2015), and rev and remanded sub nom. Shapiro McManus, 136 S.Ct. 450 (2015); Olson Malley, No. WDQ-12-0240, 2012 764421 (D.Md. Mar. instant challenge, arguing the Plan unconstitutional political gerrymander3 that transfers the power select representatives from the people all Maryland voters the Maryland General Assembly. (ECF No. 1). July 20, 2015, the State filed Motion Dismiss under Federal Rules Civil Procedure 8(c), 12(b)(1), and 12(b)(6). (ECF No. 7). Voters submitted Opposition September 21, 2015 (ECF No. 13), and the State filed Reply October 21, 2015 (ECF No. 17). accordance with Shapiro McManus, 136 S.Ct. 450 (2015) and U.S.C. 2284 (2012), the Chief Judge the United States Court Appeals for the Fourth Circuit designated three-judge court hear the State Motion Dismiss. (ECF Nos. 21, 22). The three-judge court conducted hearing July 12, 2016. (ECF No. 29). The State advances two principal arguments for why the Court should dismiss Voters claims. First, 2012); Gorrell Malley, No. WDQ-11-2975, 2012 226919 (D.Md. Jan. 19, 2012); Fletcher Lamone, 831 F.Supp.2d 887 (D.Md. 2011), aff 133 S.Ct. (2012). The term political gerrymander has been defined the practice dividing geographical area into electoral districts, often highly irregular shape, give one political party unfair advantage diluting the oppositions voting strength. Vieth Jubelirer, 541 U.S. 267, 271 n.1 (2004) (quoting Black Law Dictionary 696 (7th ed. 1999)). Voters lack standing because they allege generalized grievance behalf all Maryland voters. Second, Voters fail state claim upon which relief can granted because their claims are not justiciable. The Court begins reviewing the threshold issue standing. Motions dismiss for lack standing are governed Rule 12(b)(1), which pertains subject matter jurisdiction. See CGM, LLC BellSouth Telecomm Inc., 664 F.3d 46, (4th Cir. 2011). defendant challenging complaint under Rule 12(b)(1) may advance facial challenge, asserting that the allegations the complaint are insufficient establish subject matter jurisdiction, factual challenge, asserting that the jurisdictional allegations the complaint [are] not true. Hasley Ward Mfg., LLC, No. RDB-13-1607, 2014 3368050, (D.Md. July 2014) (alteration original) (quoting Kerns United States, 585 F.3d 187, 192 (4th Cir. 2009)). Here, because the State raises facial challenge, the Court will afford Voters the same procedural protection [they] would receive under Rule 12(b)(6) consideration. Kerns, 585 F.3d 192 (quoting Adams Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). such, the Court will take the facts Voters Complaint true and deny the State Rule 12(b)(1) Motion Dismiss the Complaint alleges sufficient facts invoke subject matter jurisdiction. Id. Article III the United States Constitution limits the judicial authority federal courts Cases and Controversies. U.S. Const. art. III, cl. Spokeo, Inc. Robins, 136 S.Ct. 1540, 1547 (2016), revised (May 24, 2016). Thus, the threshold question every federal case whether the court has authority under Article III entertain the suit. Warth Seldin, 422 U.S. 490, 498 (1975). Courts apply the standing doctrine resolve this question. Bishop Bartlett, 575 F.3d 419, 423 (4th Cir. 2009). The party invoking federal jurisdiction bears the burden establishing standing. Id. 424 (citing FW/PBS, Inc. City Dallas, 493 U.S. 215, 231 (1990)). the pleading stage, general factual allegations injury resulting from the defendant conduct may suffice, for motion dismiss court] presume[s] that general allegations embrace those specific facts that are necessary support the claim. Id. (quoting Lujan Defs. Wildlife, 504 U.S. 555, 561 (1992)). The Court must dismiss action when the party invoking federal jurisdiction does not include the necessary allegations the pleading. Id. (citing McNutt Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). The standing doctrine comprises constitutional and prudential components. Id. 423 (citing Allen Wright, 468 U.S. 737, 751 (1984)). satisfy the constitutional component, party must have suffered injury fact that fairly traceable the challenged conduct the defendant and likely redressed favorable judicial decision. Robins, 136 S.Ct. 1547 (citing Lujan, 504 U.S. 560 61). establish injury fact, plaintiff must show that she suffered invasion legally protected interest that concrete and particularized and actual imminent, not conjectural hypothetical. Id. 1548 (quoting Lujan, 504 U.S. 560). particularized injury injury that affects the plaintiff personal and individual way. Id. (quoting Lujan, 504 U.S. 560 n.1). concrete injury one that not abstract and actually exists. Id. concrete for purposes standing, injury need not tangible. Id. 1549. for the prudential component standing, courts generally recognize three circumstances under which party does not have standing: (1) when the party asserts harm that generalized grievance shared substantially equal measure all large class citizens, Bishop, 575 F.3d 423 (quoting Warth, 422 U.S. 499); (2) when the party rest[s] his claim relief the legal rights interests third parties, id. (quoting Warth, 422 U.S. 499); and (3) when the party grievance does not arguably fall within the zone interests protected regulated the statutory provision constitutional guarantee invoked the suit, id. (quoting Bennett Spear, 520 U.S. 154, 162 (1997)). That injury widely shared does not necessarily mean that the injury generalized grievance precluding standing. widely shared injury can injury fact, but only the injury concrete. Id. 424 (quoting FEC Akins, 524 U.S. 11, (1998)). The deprivation the right vote concrete injury that can constitute injury fact notwithstanding that the injury widespread. Id. (citing Akins, 524 U.S. 24). Examples widely shared abstract injuries that not confer standing include injuries the common concern for obedience the law, Akins, 524 U.S. (quoting Singer Sons Union Pac. Co., 311 U.S. 295, 303 (1940)), and injuries the public interest the administration the law, id. (quoting Perkins Lukens Steel Co., 310 U.S. 113, 125 (1940)). Throughout their Complaint, Voters consistently allege they are asserting harm that all Maryland voters endure. (See Compl. 31, ECF No. (alleging Voters are suing Maryland voters for injuries that all Maryland voters endure because the egregious gerrymandering the State congressional districts (id. 35) Maryland gerrymander harms all Maryland voters, regardless their party preferences how they would vote particular election[.] (id. 36) Maryland gerrymander inflicts particular, intentional harm partisan and non-partisan voters every description[.] Voters, however, not allege that the Plan has deprived all Maryland voters their right vote congressional elections. Instead, Voters assert that the Plan harms all Maryland voters because mechanically manipulates Maryland congressional districts manner that transfers the power select representatives from the people the Maryland General Assembly. While 10a this alleged harm not concrete the deprivation the right vote, the Court concludes that this pleading stage, this harm adequately concrete and particularized. sufficiently allege standing, however, Voters must assert more than concrete and particularized injury they must also allege invasion legally protected interest. Robins, 136 S.Ct. 1548 (quoting Lujan, 504 U.S. 560). Voters not cite any cases, and the Court exhaustive search reveals none, which court expressly held that the Constitution protects the right reside district that has not been mechanically manipulated transfer the power select representatives away from the people. Voters have not alleged the Plan created districts unequal population. Nevertheless, they rely Baker Carr, 369 U.S. 186 (1962), Wesberry Sanders, 376 U.S. (1964), and Reynolds Sims, 377 U.S. 533 (1964) (the One Person, One Vote Cases arguing they stand for more than the proposition that congressional districts within state must have equal populations. Voters assert that properly understood, [the One Person, One Vote Cases] stand for the principle that legislators and their agents may not manipulate districts arrogate themselves the power reserved the people choosing their legislators. (Pls. Opp Mot. Dismiss Opp 12, ECF No. 13). Voters further contend that these cases should understood set practical constitutional limitations legislators ability entrench 11a themselves power notwithstanding the wishes voters. (Opp 15). Baker, the United States Supreme Court held that allegations disparities population state legislative districts raise justiciable claims. 369 U.S. 206, 237. Two years later, Wesberry, the Court applied Baker strike down Georgia congressional district plan because created districts comprising vastly disparate populations. 376 U.S. 18. The Court held that the constitutional requirement that representatives chosen the People the several States, U.S. Const. art. means that nearly practicable one man vote congressional election worth much another Wesberry, 376 U.S. The Court explained that the Constitution plain objective make equal representation for equal numbers people the fundamental goal for the House Representatives. Id. 18. That same year, Reynolds, the Court applied Baker state legislative districts, invalidating Alabama malapportioned House and Senate districts. See Reynolds, 377 U.S. 577 (1964). The Court held that federal constitutional requisite both houses state legislature must apportioned population basis, meaning that states must make honest and good faith effort construct districts, both houses its legislature, nearly equal population practicable. Id. The plaintiffs claims the One Person, One Vote Cases all centered the population disparities 12a legislative districts. See Baker, 369 U.S. 192 93; Wesberry, 376 U.S. Reynolds, 377 U.S. 540. That fact alone militates against reading those cases establishing that the Constitution protects the right reside districts that have not been mechanically manipulated. What more, nothing the language the One Person, One Vote Cases suggests that the Court should apply those cases claims not asserting unequal population. such, the Court rejects Voters reading the One Person, One Vote Cases, finding untenable. sum, Voters fail identify constitutional provision case that establishes right reside district that has not been mechanically manipulated manner that transfers the power elect representatives away from the people. Thus, the Court concludes that Voters have not sufficiently alleged standing assert their claims because have they have not alleged invasion legally protected interest.4 Accordingly, the Court will grant the State Motion Dismiss for lack subject matter jurisdiction. III For the foregoing reasons, the State Motion Dismiss (ECF No. GRANTED. Voters Complaint (ECF No. DISMISSED, and the Court will direct the Clerk CLOSE this case. separate Order follows. Because the Court concludes that Voters not have standing, the Court need not determine whether Voters state claims upon which relief may granted. 13a Entered this 24th day August, 2016 /s/ _____________________________ George Russell, III United States District Judge 14a APPENDIX ORDER THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND, FILED AUGUST 24, 2016 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND Civil Action No. GLR-15-1849 Neil Parrott, al., Plaintiffs, Linda Lamone, al., Defendants. ORDER For the reasons stated the foregoing Memorandum Opinion, this 24th day August 2016, hereby: ORDERED that the State Motion Dismiss (ECF No. GRANTED; FURTHER ORDERED that Voters Complaint (ECF No. DISMISSED; and FURTHER ORDERED that the Clerk shall CLOSE this case. 15a /s/ _____________________________ George Russell, III United States District Judge 16a APPENDIX COMPLAINT, FILED JUNE 24, 2015 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND Civil Action No. 1:15-cv-1849 Neil Parrott, al., Plaintiffs, Linda Lamone, al., Defendants. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs are individual registered voters who seek declaratory and injunctive relief enforce Article Section and the Due Process Clauses the Fourteenth and Fifth Amendments the United States Constitution. Plaintiffs seek declaratory judgment that 2011 Senate Bill Maryland congressional districting plan, political gerrymander that violates the Constitution. Plaintiffs seek permanent injunction prohibiting the calling, conducting, supervising certifying 17a any future congressional elections under Maryland congressional districting plan. Plaintiffs further ask this Court order the creation new congressional districting plan that will not inflict the various harms voters constitutional rights that are currently inflicted Maryland notorious congressional gerrymander. Plaintiffs further seek costs and attorneys fees. JURISDICTION AND VENUE This Court has jurisdiction over this matter pursuant U.S.C. 1983, U.S.C. 1343(a)(3) and (4), and U.S.C. 1331, this action arises under the U.S. Constitution. Additionally, threejudge court has jurisdiction accordance with U.S.C. 2284(a) because this matter involves constitutional injuries resulting from statewide redistricting. Furthermore, this Court has jurisdiction over Plaintiffs request for declaratory relief pursuant U.S.C. 2201 and 2202. Jurisdiction for Plaintiffs claim for attorney fees based U.S.C. 1988 and U.S.C. 10310(e). Venue proper this court under U.S.C. 1391(b). PLAINTIFFS Plaintiff Neil Parrott citizen and registered voter Maryland residing Hagerstown, 18a Maryland, the Sixth Congressional District. Mr. Parrott also current member the Maryland House Delegates. Plaintiff Ann Marvin citizen and registered voter Maryland residing Denton, Maryland, the First Congressional District. 10. Plaintiff Lucille Stefanski citizen and registered voter Maryland residing Havre Grace, Maryland, the Second Congressional District. 11. Plaintiff Eric Knowles citizen and registered voter Maryland residing Annapolis, Maryland, the Third Congressional District. Mr. Knowles ran for Congress that district. 12. Plaintiff Faith Loudon citizen and registered voter Maryland residing Pasadena, Maryland, the Fourth Congressional District. Ms. Loudon ran for Congress that district. 13. Plaintiff Matt Morgan citizen and registered voter Maryland residing Mechanicsville, Maryland, the Fifth Congressional District. Mr. Morgan current member the Maryland House Delegates. 14. Plaintiff Ellen Sauerbrey citizen and registered voter Maryland residing Baldwin, Maryland, the Seventh Congressional District. Ms. Sauerbrey former member the Maryland 19a House Delegates and twice ran for Governor Maryland. 15. Plaintiff Kerinne August citizen and registered voter Maryland residing North Bethesda, Maryland, the Eighth Congressional District. 16. All Plaintiffs are injured result the political gerrymander inherent the State congressional districting plan. DEFENDANTS 17. Defendant Linda Lamone sued her official capacity Election Administrator for the State Maryland. Defendant Lamone Maryland chief election official and such responsible for the conduct elections within the State. 18. Defendant Bobbie Mack sued her official capacity Chair the Maryland State Board Elections. Chair the State Board Elections, Defendant Mack responsible for supervising the conduct elections the State. FACTS COMMON ALL CLAIMS Maryland Congressional Districting Plan 19. October 20, 2011, the Maryland General Assembly enacted Senate Bill establishing the State congressional districting plan, which Governor Martin Malley signed into law later that 20a day. This plan established the districts used for the election Maryland eight representatives the United States House Representatives through the release 2020 census information. The districting plan describes each district identifying the counties, election districts, precincts, and census block designations for the areas that are included each district. 20. According analysis conducted The Washington Post using data obtained from the U.S. Census and the Maryland Department Planning, the congressional districting plan greatly reconfigured Maryland congressional districts. Specifically, the new plan removed approximately 1.6 million Marylanders from their previous congressional district and placed them different district. According this same analysis, percent Marylanders the Sixth Congressional District were removed from their previous congressional district and placed different congressional district, were percent Marylanders the Fourth Congressional District, percent Marylanders the Eighth Congressional District, and percent Marylanders the Third Congressional District. total, percent all Marylanders were removed from their previous congressional district and placed different congressional district. 21. According editorial The Washington Post: The map, drafted under Mr. Malley watchful eye, mocks the idea that voting districts should compact easily navigable. The eight 21a districts respect neither jurisdictional boundaries nor communities interest. protect incumbents and for partisan advantage, the map has been sliced, diced, shuffled and shattered, making districts resemble studies cubism. 22. map showing the configuration Maryland congressional districting plan attached hereto Exhibit Subsequent Legal Challenges the Congressional Districting Plan 23. Since its adoption, Maryland congressional districting plan has been the subject near constant litigation. Several these lawsuits have asserted claims political partisan gerrymandering. 24. The first lawsuit assert gerrymandering claims was Fletcher Lamone, 831 Supp. 887 (D. Md. 2011). The plaintiffs that federal lawsuit argued, inter alia, that Maryland plan was political gerrymander that violated the Equal Protection Clause the Fourteenth Amendment. Id. 892. 25. The federal court Fletcher found that Senate Bill appeared political gerrymandering under U.S. Supreme Court precedent, but held that there was judicially manageable remedy available under federal law: [P]laintiffs redistricting allege that Maryland plan impermissible 22a partisan gerrymander. [T]his claim perhaps the easiest accept factually Maryland Republican Party regularly receives 40% the statewide vote but might well retain only 12.5% the congressional seats. Recent cases have reaffirmed the conceptual viability such claims, but have acknowledged that there appear judicially discernible and manageable standards for adjudicating political gerrymandering claims. Fletcher, 831 Supp. 903-904 (internal citations omitted). The concurring opinion similarly observed: [I]t clear that the plan adopted the General Assembly Maryland is, any reasonable standard, blatant political gerrymander. Fletcher, 831 Supp. 905 (Titus, J., concurring). 26. The second lawsuit make claim political gerrymandering was Gorrell Malley, 2012 U.S. Dist. Lexis 6178, (D. Md. 2012). that case, the Court dismissed the plaintiff claim that Maryland congressional district plan was unconstitutional partisan gerrymander, characterizing the claim either nonjusticiable supported only conclusory allegations. Id. 27. third Maryland lawsuit asserted political gerrymandering claims under the Fourteenth Amendment, but the plaintiffs voluntarily dismissed those claims after the Fletcher decision. Olson Malley, 2012 U.S. Dist. Lexis 29917, fn. (D. Md. 2012). 23a 28. fourth Maryland lawsuit asserted political gerrymandering violation the Fourteenth Amendment, but the claim was dismissed for lack judicially manageable standard that could used resolve such claim. Benisek Mack, Supp. 516, 526 (D. Md. 2014). 29. plaintiff the instant lawsuit was party any the four above-described lawsuits. 30. Plaintiff Neil Parrott was party two lawsuits Maryland state courts concerning referendum repeal the congressional districting plan. Specifically, Delegate Parrott was intervener Whitley State Bd. Elections, 429 Md. 132 (2012), lawsuit brought the Maryland Democratic Party prevent the people Maryland from voting the gerrymandering question based alleged invalid petition signatures. Subsequently, Delegate Parrott initiated lawsuit against the State Maryland alleging the language used describe the referendum the congressional districting plan was intentionally vague and misleading violation Maryland constitution. The Maryland Court Special Appeals ruled against Delegate Parrott both lawsuits, unreported 2014 opinion.1 Delegate Parrott asserted interests claims under the Maryland Constitution and Maryland state law, but not under the United States Constitution. Parrott McDonough., Case No. 1445 (Md. Ct. Spc. App. 2014), available http://redistricting.lls.edu/files/MD%20parr ott%2020140723%20opinion.pdf. 24a The Injuries That Are the Bases for Plaintiffs Claims 31. Gerrymandering not primarily something that Democrats and Republicans each other. Gerrymandering something that legislators and other state actors voters. Plaintiffs are suing Maryland voters for injuries including the loss decision-making power and other disadvantages peculiar gerrymandered districts that all Maryland voters endure because the egregious gerrymandering the State congressional districts. Voters Loss the Power Choose Representatives 32. means gerrymandering, mapmakers (legislators and their agents) appropriate for themselves significant part the power elect legislators. matter both democratic practice and constitutional law, that power properly belongs voters. 33. partisan gerrymander, the party charge redistricting creates (1) relatively few districts which the opposing party enjoys supermajority, and (2) greater number districts which one own party has smaller, but significant and winning, majority. effectively arranging its partisans this way, the party that controls redistricting can win more combined seats the legislature than there were gerrymander. 25a 34. Maryland has established effective congressional gerrymander, virtue which significant Republican minority, able muster about 40% the vote any given election, elects only 12.5% the State delegation the House Representatives. 35. Maryland gerrymander harms all Maryland voters, regardless their party preferences how they would vote particular election, giving State legislators the power make choices regarding the State congressional delegation that only the voters should make. 36. addition the general harm inflicted when legislators intrude powers that should reserved voters, Maryland gerrymander inflicts particular, intentional harm partisan and nonpartisan voters every description: harms Republican voters statewide diminishing their ability elect the candidates they prefer. harms Republican voters deliberately placed minority district where Democrats were deliberately given majority. harms independent non-partisan voters stacking the deck favor Democrats. harms Democratic voters deliberately placed minority the one district where 26a Republicans were supermajority. deliberately given harms voters who vote for the Democrat their own district but who might not prefer particular Democratic candidate running another district. harms voters every party who might not prefer Democratic supermajority the State delegation. There are, fact, voters who ordinarily vote the party line but who believe that divided government governs best, and who would not vote establish supermajority even their own party if, say, the option were presented the ballot. 37. crucial purpose the one-person-one-vote constitutional requirement ensure that voters retain the power choose their representatives. the extent that transfers this power Maryland legislators, Maryland congressional gerrymander circumvents the one-person-one-vote standard, frustrates its purpose, and diminishes its efficacy. 38. Article Section the U.S. Constitution provides: The House Representatives shall composed Members chosen every second Year the People the several States Maryland partisan congressional gerrymander violates this provision transferring the power select representatives from the people including Plaintiffs Maryland legislators. 27a Disadvantages Peculiar Gerrymandered Districts 39. order gerrymander, mapmakers need arrange both their own partisans and those their electoral opponents particular district configurations maximize the voting strength their own partisans. 40. Because voters not choose where live suit the purposes legislators trying draw gerrymandered districts, those legislators must distort district boundaries create districts that contain the mix voters that best achieves their partisan goals. 41. Maryland congressional districting plan, which example effective, partisan gerrymander, contains wildly deformed districts. 42. Maryland congressional districting plan illustrates the need create non-compact districts order gerrymander. Those who drew and approved Maryland bizarre-looking districts would not have invited multiple lawsuits for gerrymandering, and would not have held the State public ridicule account those districts appearance, the desired partisan result could have been achieved some other way. 43. The exceedingly non-compact districts caused gerrymandering inflict number burdens Maryland voters. 28a 44. Gerrymandered districts divide political boundaries and fracture the political communities interest they delineate. 45. The following metrics are commonly used social scientists measure the extent which district plan ignores existing political boundaries: split county any county that divided district line. county fragment created when any parts county, rather than the whole county, are contained within district. split precinct any voter precinct that divided district line. 46. Maryland gerrymandered district plan produces many split counties, county fragments, and split precincts, indicating that the district plan ignores political boundaries and fragments political communities interest. 47. Exceedingly non-compact districts confuse voters regarding such basic matters which district they reside in, who represents them, who running for office their district, and where they vote. 48. Non-compact, gerrymandered districts make harder for candidates and their political campaigns use mass media target primarily the voters their congressional district. Because gerrymandered districts are non-compact, mass media 29a advertisements tend reach across district lines significant numbers citizens outside the intended district. This further confuses voters who running for office their districts. also diminishes the value mass media advertisements making them less cost-effective. 49. Exceedingly non-compact districts make campaigning more expensive, given that candidates have expend resources educate voters about which district they reside and which candidates they are voting for; have harder time traveling the district and convincing their supporters so; and have waste resources mass media campaigns that reach many voters residing other districts. 50. Because gerrymandered districts are confusing, mass media advertisements are less effective, and candidates have work harder and spend more get information voters, voters gerrymandered districts have harder time staying informed about elections. 51. These burdens are inflicted voters gerrymandered districts public purpose and for good reason. The Necessity for Court Intervention 52. Where partisan mapmakers acquire the technical ability participate the selection legislators, the problem cannot remedied ordinary democratic means that is, holding more elections. Rather, the problem becomes chronic, 30a persistent failure democracy, which requires action federal courts. 53. Because Maryland gerrymander the partisan interest those who drew the district lines issue, will not remedied without the intervention this Court. Using District Compactness Scores Manageable Standard Adjudicate Political Gerrymandering Claims 54. Plaintiffs aver that there are judicially discernible and manageable standards for determining whether districts have been gerrymandered. particular, Plaintiffs aver that straightforward application mathematically derived compactness measure congressional districts can used judicially manageable, discernable, and non-arbitrary standard with which measure, and deter, excessive partisan gerrymandering. 55. The extent which Maryland congressional districts are distorted gerrymandering can quantified using the Polsby-Popper compactness scale.2 This scale mathematical test shape compactness. measures the compactness electoral district dividing (1) the area the This standard and its use were described Daniel Polsby and Robert Popper, The Third Criterion: Compactness Procedural Safeguard against Partisan Gerrymandering, YALE POL REV. 301 (1991). Mr. Popper co-counsel for Plaintiffs. 31a actual district (2) the area hypothetical circle having the same perimeter length the district. 56. For any district, its Polsby-Popper compactness score may determined means the following formula: (the area the district) ______________________________ (the perimeter length the district) This formula produces scores scale from with being the least compact and being the most compact. These raw scores typically are multiplied 100 produce scale from 100, with 100 being the most compact. 57. The Polsby-Popper scale does not mandate any particular, fixed, minimum scores. Rather, used only way compare different districts district plans. 58. The Polsby-Popper scale one the most widely used measures electoral district compactness. Social scientists discussing testifying about district compactness routinely utilize this measure, and courts routinely accept its use. Most redistricting software used state legislatures will automatically calculate each district Polsby-Popper scores. 59. information and belief, Maryland state legislature drew its congressional districts using the 32a Maptitude software program, which automatically calculates each district Polsby-Popper scores. 60. Maryland congressional districts have average Polsby-Popper compactness score 11.3. This the lowest (worst) average compactness score for congressional districts any state the nation. 61. Maryland Third Congressional District has Polsby-Popper compactness score 3.22. This the second lowest-scoring congressional district the nation (only slightly better than North Carolina Twelfth Congressional District.) 62. compactness measure like the Polsby-Popper scale can easily applied restrain partisan gerrymandering. Plaintiffs respectfully submit that proposed district plan cannot constitutional badly gerrymandered that another district plan, consistent with all other applicable legal requirements, could drawn which the average compactness score higher, and which the compactness score least one district least two times higher than its ranked counterpart the proposed plan. 63. always may determined whether district plan meets this simple, bright-line standard. 64. This standard will prevent the worst excesses partisan gerrymandering and the creation the most wildly contorted districts. Indeed, the situations where will apply where overall compactness can improved while the compactness 33a particular district improved factor two will restricted very bad gerrymanders, like Maryland 65. This standard still practical and forgiving. allows legislators considerable leeway account for other legitimate redistricting interests, like the creation districts containing bona fide communities interest. 66. This standard applies non-arbitrary, consistent rule that will prevent the most egregious kinds gerrymandering. 67. This compactness standard can applied consistently with every other federal and state legal requirement concerning redistricting. Comparing Maryland District Plan With Illustrative Plan 68. The scores for each Maryland current congressional districts the PolsbyPopper scale (out possible 100) are: 34a District Compactness 16.0 6.2 3.2 9.2 31.6 7.1 8.7 8.1 Average 11.3. 69. Plaintiffs have attached Exhibit hypothetical district map. Its PolsbyPopper scores are: District Compactness 12.9 53.8 44.3 43.3 51.1 35.8 43.7 41.7 Average 40.8. 70. All the congressional districts Plaintiffs district plan have populations that are equal mathematically possible and equal Maryland current district plan. 35a 71. Plaintiffs district plan has fewer split counties than does the current Maryland district plan. Specifically, Plaintiffs district plan has split counties, and the current Maryland plan has split counties. 72. Plaintiffs district plan has significantly fewer county fragments than does the current Maryland district plan. Specifically, Plaintiffs district plan has county fragments, and the current Maryland plan has county fragments. 73. Plaintiffs district plan has far fewer split precincts than does the current Maryland district plan. Specifically, Plaintiffs district plan has 110 split precincts, and the current Maryland plan has 172 split precincts. 74. Because Plaintiffs plan has fewer split counties, significantly fewer county fragments, and far fewer split precincts, than Maryland current plan, Plaintiffs plan superior Maryland plan preserving local political boundaries and the communities interest they contain. 75. Compared the districts Maryland current plan, the districts Plaintiffs district plan are vastly more compact. Ranking the districts each plan order compactness from lowest highest, the percentage difference ranked compactness scores follows: 36a Maryland Current Plan Plaintiffs Plan Percent Increase Compactness Plaintiffs Plan Dist. Compactness Dist. Compactness 3.2 6.2 7.1 8.1 8.7 9.2 16.0 31.6 12.9 35.8 41.7 43.3 43.7 44.3 51.1 53.8 402% 577% 590% 534% 500% 481% 320% 171% AVG 11.3 AVG 40.8 363%3 76. The lowest scoring district Plaintiffs district plan (at 12.9) scores better than Maryland current districts indeed, scores better than Maryland current average 11.3. 77. The dramatic improvement Plaintiffs were able achieve the compactness every single district explained the simple fact that Maryland district plan the most gerrymandered and least compact the nation. District scores are rounded. Averages and percentages are based actual, not rounded, scores. 37a 78. The dramatic improvement demonstrated Plaintiffs illustrative plan also proves that the noncompactness Maryland current districts not due the unusual shape the State Maryland. Rather, this non-compactness due the deliberately bizarre district lines Maryland legislators drew order gerrymander, any visual review its district plan confirms. 79. Maryland congressional districts are gerrymandered and non-compact that the results achieved Plaintiffs drawing alternative easily could replicated. other words, countless other plans could drawn which (1) equal district population was achieved, (2) the integrity communities was more respected than Maryland current district plan, and (3) district compactness was improved many multiples the current compactness scores. CAUSES ACTION COUNT Restricting the Power the People Choose Their Representatives Violation Article Section 80. Plaintiffs incorporate reference all preceding paragraphs fully set forth herein. 81. Article Section the U.S. Constitution provides relevant part: The House Representatives shall composed Members chosen every second Year the People the several States 38a 82. the case partisan congressional gerrymander like that Maryland, the power select representatives transferred, significant part, from the people interested mapmakers the legislature. 83. Maryland partisan congressional gerrymander violates Article Section transferring the power select representatives from the people including Plaintiffs Maryland legislators, and should enjoined. COUNT Burdening the Right Vote Violation the Due Process Clauses the Fourteenth and Fifth Amendments. 84. Plaintiffs incorporate reference all preceding paragraphs fully set forth herein. 85. Voting fundamental right protected the Due Process Clauses the Fourteenth and the Fifth Amendments the U.S. Constitution. 86. inflicting electoral harms arising from noncompact districts, gerrymandering burdens Plaintiffs right vote violation their constitutional right Due Process. PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully pray that this Court: 39a Assume jurisdiction and request three judge panel pursuant U.S.C. 2284; Issue declaratory judgment finding that the congressional districting plan illegally and unconstitutionally injures Plaintiffs and unlawful; Permanently enjoin Defendants from calling, holding, certifying any elections under the congressional districting plan; Order State authorities adopt new congressional districting plan without unlawful politically gerrymanders consistent with the compactness standards articulated this Complaint; the State fails adopt such plan the Court reasonable deadline, order the use new congressional districting plan the Court choosing; Order Defendants pay Plai