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Judicial Watch • Rucho v Common Cause gerrymandering amicus 18-422

Rucho v Common Cause gerrymandering amicus 18-422

Rucho v Common Cause gerrymandering amicus 18-422

Page 1: Rucho v Common Cause gerrymandering amicus 18-422


Number of Pages:15

Date Created:February 11, 2019

Date Uploaded to the Library:February 19, 2019

Tags:Rucho, 18-422, Common Cause, Benisek, Districting, Electoral, Vieth, Lamone, gerrymandering, Amici, carolina, Amicus, maryland, Supreme Court

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No. 18-422 THE
Supreme Court the United States
_________ Appeal from the United States District
Court for the Middle District North Carolina
Robert Popper
Counsel Record
Eric Lee
425 Third Street
Washington, 20024
(202) 646-5172
Counsel for Amici Curiae
Dated: February 12, 2019
Washington 202-747-2400
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY ARGUMENT.....................................2
ARGUMENT ...............................................................3 Requirement that Plaintiffs Show
Discriminatory Partisan Intent
Meaningless, Because Partisan
Mapmakers Always Have Partisan
Intent ................................................................6
II. Requirement that Plaintiffs Show
Particular Quantum Electoral Harm
Risks Becoming Federal Guarantee
Proportional Representation ............................7
The Only Manageable Way Control
Gerrymandering Look for and
Enjoin the Distortion District Lines ............9
CONCLUSION ..........................................................12
Benisek Lamone, No. 1:13-cv-03233-JKB,
2018 U.S. Dist. LEXIS 190292
(D. Md. Nov. 2018)................................4,
Common Cause Rucho,
318 Supp. 777
(M.D.N.C. 2018) ...................................... passim
Davis Bandemer, 478 U.S. 109 (1986) ................6,
Gaffney Cummings, 412 U.S. 735 (1973) ...............6
Gill Whitford, 138 Ct. 1916 (2018) .................2,
Lamone Benisek, No. 18-726 (2018) .......................3
Parrott Lamone, No. GLR-15-1849,
2016 U.S. Dist. LEXIS 112736
(D. Md. Aug. 24, 2016)......................................2
Shaw Reno, 509 U.S. 630 (1993)............................6
Vieth Jubelirer, 541 U.S. 267 (2004) ........ 9-10
Judicial Watch, Inc. Judicial Watch
nonpartisan, nonprofit 501(c)(3) educational
foundation that seeks promote transparency,
integrity, and accountability government and
fidelity the rule law. Judicial Watch regularly
files amicus curiae briefs means advance its
public interest mission and has appeared amicus
curiae this Court number occasions.
The Allied Educational Foundation AEF
501(c)(3) nonprofit charitable and educational
foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education
diverse areas study. AEF regularly files amicus
curiae briefs means advance its purpose and
has appeared amicus curiae this Court
number occasions.
Amici are experts the important political and
gerrymandering that are raised the district court
decision. Amici believe, moreover, that partisan
gerrymandering gives rise justiciable
constitutional claim, and they have argued for their
own standard based violations traditional
districting criteria during their own challenge the
same congressional redistricting plan Maryland.
Amici state that counsel for party this case authored
this brief whole part; and person entity, other than
amici and their counsel, made monetary contribution intended fund the preparation and submission this brief. The parties
have consented the filing amicus briefs this case.
See Parrott Lamone, No. GLR-15-1849, 2016 U.S.
Dist. LEXIS 112736 (D. Md. Aug. 24, 2016), appeal
dismissed, 137 Ct. 654 (2017). Amici previously
appeared amici Gill, discussing the numerous
practical shortcomings the efficiency gap analysis
proposed the plaintiffs that case. See Brief for
Judicial Watch and Allied Educational Foundation
Amici Curiae Supporting Appellants 4-15, Gill
Whitford, No. 16-1161.
The district courts North Carolina and
Maryland failed establish workable test for
gerrymandering for two reasons. First, the Court
has frequently recognized, partisan motives are
always part the process drawing district
boundaries. consequence, the requirement
imposed the district courts below that plaintiffs
show discriminatory partisan intent does not help
distinguish gerrymandered district from any other
kind district.
Second, the district courts
requirement that plaintiffs show some sort effect
risks indirectly importing obligation that parties
electoral outcomes approximate system
proportional representation. workable test for gerrymandering
constructed, this Court should adopt standard that
focuses the quantifiable violence that partisan
mapmakers district boundary lines and political
ARGUMENT this case and Lamone Benisek, No. 18726, three-judge district courts determined that the
states North Carolina and Maryland, respectively,
The Court now asked
determine whether either district court was able
solve the central problem gerrymandering
jurisprudence, namely, that identifying judicially
adjudicating political gerrymandering claims. Vieth Jubelirer, 541 U.S. 267, 281 (2004) (plurality
opinion). set forth below, the district courts have
failed. North Carolina, the district court held that
the State had engaged partisan gerrymandering
that violated the Equal Protection Clause, the First
Amendment, and Article the Constitution, under number different theories. Yet the standards
employed the district court describe these
various violations share common elements. The
district court found that violation the Equal
Protection Clause shown Plaintiffs establish that
the 2016 Plan was enacted with discriminatory intent
and resulted discriminatory effects, without
legitimate justification. Common Cause Rucho, 318 Supp. 777, 861 (M.D.N.C. 2018). The First
Amendment was violated because the 2016 Plan was
intended disfavor supporters non-Republican
candidates [and] burdened such supporters
political speech and associational rights, and this
burden was caused that discriminatory
motivation. Id. 935. Article was violated because
the 2016 Plan was intended disfavor nonRepublican candidates and supporters such
candidates, and fact yielded congressional
delegation with the intended composition, which
made successful attempt[] dictate election
outcomes. Id. 941 (citations omitted).
The district court Maryland similarly found
that the First Amendment would violated the
plaintiffs could show three elements: first, specific
intent, meaning that district lines were drawn with
the intent burden citizens because how they
voted the political party with which they were
affiliated, second, injury that the plaintiffs had,
fact, experienced concrete burden, and third,
causation. Benisek Lamone, No. 1:13-cv-03233JKB, 2018 U.S. Dist. LEXIS 190292 *32-33 (D. Md.
Nov. 2018) (internal quotations omitted).
The critical elements shared every standard
proposed either district court are (1) the intent
draw districts that burden political opponents and (2) resulting effect. discussed below, these
standards not establish workable test for
gerrymandering. Because every district drawn
with partisan intent, the first element does not
gerrymandered district that gives rise
constitutional claim and drawing any other district. element that always present has value
test. Further, the need show effect usually
understood the need show some sort change electoral results. This element worse than
useless, dangerous, because indirectly imports requirement proportional representation. long the absence proportional representation
considered factor indicating partisan
gerrymandering, then some form proportional
representation becomes practical necessity. test for gerrymandering constructed, must focus instead the way mapmakers distort
district lines. The test must focus, other words,
the violation such traditional districting criteria
district compactness and contiguity, and the extent
which district lines coincide with ignore existing
political boundaries. While both districts courts
discussed these factors, and the Rucho court
discussed them length (318 Supp. 899-923),
they relegated them secondary evidence partisan
intent. This was surely unnecessary, partisan
intent was abundantly established the frank
admissions those who drew the district lines. See,
e.g., id. 869; Benisek, 2018 U.S. Dist. LEXIS
190292, *10, 21-24. But was also misguided.
fact, the violation traditional districting criteria
must considered the key constructing any
manageable standard for identifying partisan
gerrymandering. the only standard that can
usefully distinguish gerrymandered district from
any other. Requirement that Plaintiffs Show
Meaningless, Because Partisan Mapmakers
Always Have Partisan Intent.
The Court has frequently recognized that
districting always and everywhere animated
partisan motives. See Gaffney Cummings, 412 U.S.
735, 753 (1973) Politics and political considerations
are inseparable from districting and apportionment. The reality that districting inevitably has and
consequences. Davis Bandemer, 478 U.S. 109,
128 (1986) (plurality opinion) whenever
legislature redistricts, those responsible for the
legislation will know the likely political composition the new districts and will have prediction
whether particular district safe one for
Democratic Republican candidate Vieth, 541 U.S. 285 (plurality opinion) The Constitution clearly
contemplates districting political entities and
unsurprisingly that turns out root-and-branch
matter politics. Shaw Reno, 509 U.S. 630, 662
(1993) (White, J., dissenting) districting inevitably the expression interest group politics consequence, naive for the Benisek court order the State Maryland draw districts
without considering how citizens are registered
vote have voted the past what political
party they belong. Benisek, 2018 U.S. Dist. LEXIS
190292, *78. This like enjoining individuals
stop being self-centered, petty, greedy, and will
Gerrymandering will still on, although mapmakers
might stop talking about publicly. fact, most
elected officials know where their support
concentrated, with without the aid computers.
the district court injunction were taken seriously,
moreover, would simply guarantee that every
district the country will drawn federal
The reality that partisan motives are
distinguished partisan intent. Party spirit will
present wherever there are people, even
redistricting commissions.
This element the
district courts standards will always met, and thus performs practical function test.
II. Requirement that Plaintiffs Show
Particular Quantum Electoral Harm
Risks Becoming Federal Guarantee
Proportional Representation. show that the partisan intent exhibited
North Carolina mapmakers had actionable effect,
the Rucho court relied social scientist uniform
swing analysis and test partisan asymmetry
based the efficiency gap. 318 Supp. 88586. The ultimate purpose these analyses
assess various ways which the relative strength
the parties apportioned particular district
The assumption underlying these analyses
that possible estimate what the parties
relative strengths should fair districting
plan. amici previously have argued greater
length, this assumption doubtful, because the basic
mathematical constants underlying such analyses are dispute. See Brief for Judicial Watch and Allied
Educational Foundation Amici Curiae Supporting
Appellants 9-12, Gill Whitford, No. 16-1161, Aug.
These analyses also seek apply average
estimates changes parties strengths over time
draw conclusions about particular elections. the
defendants argued below, the efficiency gap, for
example, does not take into account number
idiosyncratic considerations that affect particular
electoral outcomes. 318 Supp. 890. These
considerations include the quality candidates,
scandals local issues affecting race, the money
available parties candidates, the effect wave
The district court responded this
argument noting that all these factors were
present various times the many elections that
were averaged the social scientist. Id. This badly
misses the point. wave election, and not
gerrymandering, responsible for particular
efficiency gap particular election, then
simply wrong rely that efficiency gap evidence gerrymandering.
More fundamentally, dangerous use
average measures electoral strength part
test for gerrymandering.
The reason that
conforming these average measures will come
viewed requirement. Mapmakers who wish
avoid being sued will understand that they must
apportion electoral strength the social scientists
tell them they should. this way, some form
proportional representation will become practical
fact not fiat, but because the incentives
imposed the threat federal lawsuits.
III. The Only Manageable Way Control
Gerrymandering Look for and Enjoin
the Distortion District Lines.
The basic operation partisan gerrymanders
requires that voters placed within without
districts the basis their partisan affiliations.
Because voters not choose where live favor politicians, electoral districts must stretched
and shrunk include the partisan mix voters
that best suits the partisan mapmaker.
inevitable result noncompact, even noncontiguous
districts, which needlessly cross existing political
Such violations traditional districting
criteria especially extreme noncompactness can
used functional tests identify and enjoin
gerrymandering. See Davis Bandemer, 478 U.S.
109, 173 (1986) (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 see id. some
cases, proof grotesque district shapes may, without
more, provide convincing proof unconstitutional
gerrymandering. Vieth, 541 U.S. 348 (Souter, J.,
joined Ginsburg, J., dissenting) (gerrymandering
can shown part where districts violate
traditional districting principles whose disregard
can shown straightforwardly: contiguity,
compactness, respect for political subdivisions, and
conformity with geographic features, noting that
compactness can measured quantitatively
terms dispersion, perimeter, and population
ratios Indeed, the Rucho court identified the
mathematical tools that could used, including the
division counties, municipalities, precincts, and
the Reock and Polsby-Popper compactness measures.
318 Supp. 899-900.
The superiority district boundary standard
focused compactness, contiguity, and boundary
crossings the intent and effects standards proposed the district courts can simply demonstrated.
Every district North Carolina and Maryland
indeed, every district the country was draw with
partisan intent, looking for partisan intent will not
help distinguish extreme actionable
gerrymandering from all other kinds districting.
the same vein, every district the two states, and
the nation, will have unique electoral profile, and
one that differs from the average electoral profile
certain extent. Nor surprising that that profile
often will reflect the intent the person who drew the
Although the district court speculated dicta that
gerrymandering could done while complying with traditional
districting criteria, acknowledged that that was not true the
case before it. While North Carolina 2016 plan improve[d]
the compactness the 2011 Plan, number districts
take bizarre and irregular shapes explicable only the
partisan make-up the precincts. 318 Supp. 883.
district. Once again, that electoral profile fails
distinguish gerrymandered district from every other
But not the case that every other district
North Carolina and Maryland noncompact, for
example, the least compact districts those states
(North Carolina old 12th District current 2nd
District, and Maryland 3rd District). Those districts
score poorly, both their home states and nationally.
Testing for compactness actually distinguishes
between these and other districts. is, other
words, real test.
Amici respectfully submit that the only way
construct manageable standard identify
unconstitutional gerrymandering considering
quantifiable measures district plans deviation
from the traditional districting criteria
compactness, contiguity, and county, city, and
precinct splits.
For the foregoing reasons, amici Judicial Watch,
Inc. and Allied Educational Foundation respectfully
request that the Court reverse the judgment the
district court.
Respectfully submitted,
Robert Popper
Counsel Record
Eric Lee
425 Third Street
Washington, 20024
(202) 646-5172
Counsel for Amici Curiae
February 12, 2019