Autogenerated text from PDF

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