In the

Supreme Court of the United States

BEVERLY R. GILL, ET AL., APPELLANTS

v.

WILLIAM WHITFORD, ET AL.

 

 

BRIEF FOR APPELLANTS (Petitioners)

 

 

QUESTIONS PRESENTED

1. Did the district court lack jurisdiction over this case because Plaintiffs have no standing to bring their statewide partisan-gerrymandering claims?

2. Did the district court lack jurisdiction over this case because statewide partisan-gerrymandering claims are nonjusticiable?

3. Did Plaintiffs fail to state a claim on which relief can be granted because they failed to articulate a limited and precise standard, Vieth v. Jubelirer,?

4. Are Defendants entitled to judgment because Act 43 complies with traditional redistricting princi­ples and is otherwise unobjectionable?

5. Are Defendants entitled, at the very minimum, to a remand so that they can present evidence under a fairly noticed legal standard?


INTRODUCTION

A divided three-judge district court became the first court in decades to invalidate a redistricting plan on partisan-gerrymandering grounds. The plan that the court struck down, Act 43, complies with tradi­tional redistricting principles and does not meaning­fully differ from the immediately prior, court-drawn map in terms of election outcomes. As the dissent be­low explained, the only way that Wisconsin Republi­cans could have achieved Plaintiffs' desired partisan results would have been to engage in heroic levels of nonpartisan statesmanship, purposefully abandon­ing their advantage under the court-drawn plan.

While Plaintiffs in their Motion to Affirm before this Court did not defend the district court's core rea­soning' they continued to argue that Act 43 is unlaw­ful because the Legislature engaged in too much partisanship. But partisan gerrymandering dates back to the founding. Although some might find this practice distasteful, this Court's prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymander­ing. Plaintiffs seek to overturn this centuries-old status quo, thereby committing federal and state courts to unprecedented interven­tion in the American political process. Plaintiffs seek to impose this change without identifying any historically grounded comprehensive and neutral principles, and while simply repeating arguments that this Court has already rejected.

The massive intervention that Plaintiffs urge this Court to authorize is unprecedented. Under the approach they advocated in their Motion to Affirm, whenever a politically minded body draws electoral boundaries-whether for House of Repre­sentatives seats, the state legislature, or a local water district-any displeased voter in the State (even one living in a district not altered by the new map) can file a lawsuit in federal court, seeking invalidation of the entire map. In that lawsuit, the plaintiff would need only rely upon one or more of any number of develop­ing social science metrics, ranging from the effi­ciency gap to mean-median difference calculations to sensitivity testing to as-yet unidentified theo­rems. The dis­trict court would then compare the outputs of these cherry-picked metric(s) with the outputs of whatever metric(s) the defendants favored and then (somehow) decide, in the name of the Constitution, whether there has been too much partisanship.

Notably, under the metric that Plaintiffs favored below, one out of every three legislative maps over the last 45 years would have had too much partisan effect. And this actually understates the breadth of what Plaintiffs urge this Court to adopt, as other plaintiffs could attack the remaining maps simply by relying upon other academic formulas thought to exploit re­cent conceptual and methodological advances in the social sciences.

Plaintiffs' approach is thus not limited and pre­cise under any reasonable understanding of that standard, meaning that Defendants are entitled to judgment. More generally, that Plaintiffs can offer nothing better than their social­ science hodgepodge aptly shows that the weighty ar­guments for holding cases like these to be non-justici­able have now prevailed. It has been more than three decades since Davis v. Bandemer (1986), and yet no party or court has identified any comprehensive and neutral principles for drawing electoral boundaries, let alone a limited and precise test to enforce those.

Plaintiffs would also create an unthinkable imbal­ance in this Court's standing doctrine, making allega­tions of partisan gerrymandering more legally powerful than claims even of racial gerrymandering. Plaintiffs based their standing on the assertion that a voter living in any district in a State can challenge a map on a statewide basis. That is contrary to this Court's racial-gerrymandering case law, which holds that a voter can challenge only that voter's own dis­trict and cannot attack a map as an undifferentiated whole. The result of Plaintiffs' rejection of that principle in the political context would be to favor partisanship-based claims over race-based claims.

This Court should reverse the district court and hold that Plaintiffs' lawsuit must be dismissed.

CONSTITUTIONAL PROVISIONS INVOLVED

This appeal involves the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

STATEMENT

A. Political Gerrymandering In Early Ameri­can History

As historically understood, a partisan gerryman­der is a map drawn without any apparent regard to the convenience or propriety of the districts, creating irregularly shaped election dis­tricts for partisan advantage. This practice dates back to the founding.

In the 1789 redistricting of the New York Legisla­ture, for example, the Federalist Party unnecessarily divided a county by lopping off towns into different districts to secure to their party the control of the new government  provided for in the federal Con­stitution. The Legislature also engaged in similar tactics in 1801, 1802, 1804, 1808 (with some districts that year not even con­nected), and again in 1812.

In 1812, Massachusetts Democratic-Republicans completed the notoriously outrageous political dis­tricting from which gerrymandering received its name. This plan created districts of fantastic shapes, sepa­rating some towns and isolating others from their proper counties to boost Democratic-Republi­can political fortunes. The most distorted contour was the outer district of Essex county. Someone proposed the term salamander for the figure, which was then combined with the last name of Massachusetts Governor Elbridge Gerry, who had allowed the redistricting bill to become a law, to create the portmanteau gerrymander.

After the enactment of this map, the Federalists still won 80 percent of the House seats in the 1812 election and recaptured control of the state legisla­ture. After Governor Gerry himself lost, James T. Austin, the new Federalist majority then set about remapping Mas­sachusetts's congressional districts to further en­hance the prospects of Federalist congressional candidates in the 1814 election.

In 1842, Ohio Democrats introduced a gerryman­dered redistricting plan in a special legislative ses­sion. The plan grouped counties along the Ohio river in the coal region in a partisan manner, which became known to the public through a local paper publishing cartoons in the spirit of the original gerrymander.

And So It Went Until the Present Day; IÕll Spare you Pages of Detail (BenÕs Remark)

WisconsinÕs Gerrymandering

From the 1960s through the 1990s, Wisconsin's political branches often failed to agree on districting maps, thereby forcing federal courts to draw Assem­bly maps. Following this Court's decision in Baker v. Carr (1962), the Wisconsin Supreme Court drew the State's legislative districts after the Legislature and Governor were unable to agree on a plan. After the 1970 census, Wis­consin's political branches reapportioned the Assem­bly districts. Following the 1980 census, a federal district court drafted its own redistricting plan after the Governor vetoed the Leg­islature's proposed plan. When Democrats won the Governor's office in the 1982 elec­tion, the Democratic Legislature and Governor passed new Assembly districts, which were in force through the end of the decade after temporarily being stayed by the courts. Federal courts again drew Wisconsin's Assembly districts for the 1990s, after the Republican governor vetoed the Democratic Legislature's plan.

Following the 2000 census, a federal court again drew Assembly districts due to split control of the two houses of the Legislature. The court drew its plan in the most neutral way it could conceive-by taking the 1992 plan as a template and adjusting it for population deviations. The two-party election results under the 2002 plan were as follows:

 

 

 

Election Year

Republican

Republican

Vote Share

Seats (Out of 99)

2002

50.50%

58

2004

50.00%

60

2006

45.25%

52

2008

46.00%

46

2010

53.50%

60

2. The Legislature drew the map at issue here, 2011 Wisconsin Act 43, after Republicans won control of the Legislature and Governorship in the 2010 election.

The Legislature assigned primary drafting re­sponsibility to two legislative staffers and a former legislator. The staffers focused on creating various draft maps that complied with the Voting Rights Act (VRA), equal-population requirements, and traditional districting principles, while also tak­ing politics into account. The goal was to create proposed regional alternatives for the Legislative leadership to consider.

To comply with the VRA, the staffers paid special attention to Milwaukee's Assembly districts. After locking in the Milwaukee-area districts, the staffers then drew various draft maps that com­plied with equal-population requirements, traditional redistricting principles, and state laws. The staffers drafted maps that were compact and contiguous by drawing reasonably configured districts, sought to avoid pairing incumbents, and tried to minimize delayed voting, also called disenfranchisement, of voters shifted between Senate districts.

The staffers also considered the political implica­tions of their various draft maps, using a tool they called the composite score. This score is a snapshot of the partisan preferences of Assembly district vot­ers, derived from averaging statewide races from 2004 through 2010. This score did not purport to pro­ject, with any degree of precision, future Assembly elections; as an average of statewide races, it took no account of incumbency, candidate strength, or other Assembly - district- specific factors.

After completing their VRA, population-equality, traditional-redistricting-principles, and political analyses for their draft maps, the staffers presented portions of their various draft maps, by region, to leg­islative leadership, who then selected the preferred approach for each region. The drafters combined these regions into a single map, and then legislative leadership and one of the staffers met with each Republican member of the Assembly to discuss their district. The Legislature then adopted the map, after some minor adjustments. The district court drew a sig­nificant negative inference from the fact that Democrats were projected to win a majority of seats only after they managed to win more than 53% of the statewide Assembly vote.

Two elections occurred under Act 43 before Plain­tiffs filed their lawsuit. In the 2012 elections, Repub­licans won 60 out of 99 seats in the Assembly with 48.6% of the statewide two-party vote. In the 2014 elections, the Republicans won 63 of 99 seats in the State Assembly with 52% of the statewide two-party vote.

SUMMARY OF ARGUMENT

I. As a majority of the Justices of this Court con­cluded in Vieth, federal courts lack jurisdiction to ad­judicate statewide political-gerrymandering claims. These Justices were correct on both standing and justiciability grounds.

A. Plaintiffs, individual voters in 11 of Wiscon­sin's Assembly districts, lack standing to challenge Act 43 on a statewide basis because they could only possibly suffer concrete, particularized harm in their specific districts. Even in a racial-gerrymandering case, a plaintiff only has standing to challenge the plaintiffs own district, not the entire map as an un­differentiated whole. This rationale applies directly to political-gerrymandering claims. A Wisconsin voter like the lead plaintiff in this case only has a con­crete and particularized interest in the district where he lives and votes. He has no standing to challenge other Wisconsin Assembly districts or other House of Representatives districts (including districts in other States), on the theory that he wants more Democrats for his Assembly or House member to caucus with.

A contrary conclusion would lead to an unthinka­ble and perverse loophole in this Court's standing doc­trine. Given that plaintiffs may not bring statewide racial-gerrymandering claims, permitting such claims in the political-gerrymandering context would favor politics-based claims over allegations that the legislature acted with improper racial motives.

B. Plaintiffs' statewide claims also present a non­-justiciable political question. In Vieth, a majority of this Court either definitively concluded that such claims were non-justiciable, or could eventually prove to be so. The last three decades of fruitless litigation demonstrate that there are no judicially discernible standards in this area of law. The only theory that Plaintiffs pre­sented below-so-called partisan symmetry-is not a comprehensive and neutral principle of district­ing, derived from the annals of parliamentary or leg­islative bodies. Partisan symmetry is simply a species of proportional representation, for which there is no constitutional authority, and which has no historical or even present-day support in districting practice.

II. Even if this Court concludes that the district court had jurisdiction to consider Plaintiffs' claims, Plaintiffs have not stated a claim on which relief can be granted because they have not articulated a lim­ited and precise standard.

The theory that Plaintiffs proposed in their Mo­tion to Affirm is the opposite of limited and precise. That theory identifies partisan effect based upon a brew of partisan asymmetry and partisan bias, the efficiency gap, mean-median difference calculations, sensitivity testing, and more.

The district court found that Act 43 had an impermissible partisan effect be­cause it allegedly secured for Republicans a lasting Assembly majority throughout the decade. As Plaintiffs conceded, this approach is foreclosed by Vieth. Given Plaintiffs' concession below, the entrenchment issue was not fairly litigated at triaL Accordingly, if this Court were to hold that entrenchment plays any part in a parti­san-gerrymandering test, Defendants respectfully submit that a remand to permit the parties to litigate this issue would be appropriate.

IlL Plaintiffs' lawsuit also fails because Act 43 complies with traditional redistricting principles and is otherwise unremarkable. A majority of Justices in Vieth who would even permit adjudication of parti­san-gerrymandering claims would require the plain­tiff to show as an element of the claim that the legislature did not comply with these neutral princi­ples. Here, it was undisputed below that Act 43 com­plies with these principles, meaning that Plaintiffs' lawsuit fails for this reason alone. At the very mini­mum, Act 43 is lawful because the Legislature consid­ered political implications as only one of many legitimate factors, including traditional redistricting principles, and because Act 43's results are generally comparable to those that obtained under the immedi­ately prior court-drawn map.

CONCLUSION

This Court has never found that a state legisla­ture engaged in unlawful partisan gerrymandering.

Plaintiffs have presented this Court with no new, his­torical-based redistricting principles and no new, ad­ministrable test. They have, instead, recycled arguments that this Court has already rejected, while attacking a plan that complies with traditional redis­tricting principles and is strikingly similar to the im­mediately prior, court-drawn plan. Given the jurisdictional and merits-based deficiencies in Plain­tiffs' claims, their lawsuit must be dismissed.

The judgment of the district court should be re­versed.