In the

Supreme Court of the United States







"Partisan gerrymanders ... are incompatible with democratic principles."

They violate the Equal Protection Clause by discriminating against the targeted party's voters, preventing their ballots from translating into "fair and effective representation." They thus can entrench the line-drawing party in power, even if that party lacks majority support among the electorate. Gerrymanders also amount to forbidden viewpoint discrimination in contravention of the First Amendment. They "penalize citizens"-by diluting their electoral influence-Ōbecause of their . . . association with a political party, or their expression of political views."

As the record in this case makes clear, partisan gerrymanders have become more common, more severe, and more durable in their effects since this Court last considered their constitutionality more than a decade ago. This is the product of better map-drawing technology utilizing more sophisticated voter data about an increasingly polarized electorate. The result, in too many states, has been a subversion of democracy, as officeholders have wrested power from voters. "The problem is cancerous, undermining the fundamental tenets of our form of democracy."


In this Court's decision in Vieth, not a single Justice disagreed with the principle that the excessive injection of politics into redistricting severely distorts democracy and violates the Constitution. Nor do Appellants disagree with that principle. Instead, they argue that courts are powerless to redress this affront to the Constitution, because, they say, there is no principled way to distinguish between permissible partisanship in redistricting and unlawful gerrymandering.


The district court properly rejected this argument. The three-pronged test the court derived from this Court's jurisprudence provides a judicially discernible and manageable approach for identifying district plans that transgress basic constitutional norms. Under this test, before invalidating a plan, a court must make a series of findings. First, it must find that the map was designed with discriminatory intent: "to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation." Second, it must determine that the map causes a "large and durable" discriminatory effect: one that is "sizeable" and likely to "persist throughout the decennial period." And third, it must conclude that there is no valid justification for this effect: no way to explain it "by the legitimate state prerogatives and neutral factors that are implicated in the districting process."

After extensive discovery and a four-day trial, the district court applied this test and held that the plan for the Wisconsin State Assembly, Act 43, is unconstitutional. The court found, first, that Act 43 was crafted with an obsessive focus on partisan advantage. Its drafters systematically cracked and packed Democratic voters, seeking to guarantee Republicans a supermajority of Assembly seats even if they garnered only a minority of the statewide vote. Second, the court concluded that Act 43 performed exactly as intended. According to quantitative measures of partisan asymmetry, "it is undisputed that, from 1972 to 2010, not a single legislative map in the country was as asymmetric in its first two elections" as Act 43. This asymmetry is so deeply rooted that it would take an "'unprecedented political earthquake'" to dislodge it. And third, the court determined that there was no neutral justification for Act 43's discriminatory effect. To the contrary, several sets of alternative maps demonstrated that Appellants could have achieved their valid redistricting goals without handicapping either party's supporters.

This Court should affirm because the district court's test provides a judicially discernible and manageable standard for adjudicating partisan gerrymandering claims, and there is no dispute that under this standard, Act 43 is unconstitutional. An affirmance would strike a blow against a practice, engaged in by both parties, that increasingly threatens American democracy. By contrast, a decision barring any judicial remedy in cases like this one would leave voters with nowhere to turn. The legislators who benefit from gerrymandering have no incentive to curb it. The voters victimized by the practice cannot oust their representatives even if they change their votes in very large numbers. Moreover, in most states, voters are unable to impose state constitutional constraints without legislative assent. It is thus only through the courts' intervention that "fair and effective representation" can be restored.

The impact of an affirmance would be neutral and limited, yet potent. Both parties' gerrymanders would be equally vulnerable to legal challenge. Only a relatively small percentage of current plans would become actionable. But, as preparations begin for the next redistricting cycle, mapmakers would be powerfully reminded of "'the core principle of republican government,' namely 'that the voters should choose their representatives, not the other way around.'"

Once Again IÕll Spare you Pages of Detail (BenÕs Remark)


Partisan Gerrymandering Has Become More Extreme, More Persistent, and More Impactful.

Appellants begin their brief with a selective history of gerrymandering in the eighteenth and nineteenth centuries, apparently seeking to establish its historical pedigree. But malapportionment, racial vote dilution, and outright disenfranchisement have similar historical pedigrees and are no more constitutional. Nor does Appellants' history undermine the conventional understanding of strange district shape (and other violations of traditional districting principles): that they are techniques that are sometimes used to implement partisan gerrymanders. That gerrymandering is not simply creating odd borders is confirmed by Elmer Griffith, the author on whom Appellants primarily rely. He writes that gerrymandering is "accomplished by forming into a few districts territory where the vote is overwhelmingly in favor of the opposition; and on the other hand by spreading out the dominant party's vote so as to carry the remaining districts by a safe but small margin." This passage is a pithy explanation of cracking and packing-the techniques at the heart of this case.

Appellants' history also omits more recent developments, which are alarming. Analyzing district plans from 1972 onward, Professor Jackman showed at trial that partisan gerrymandering has surged to unprecedented levels of severity. At both the state legislative and congressional levels, the plans now in effect have exhibited the worst asymmetries in modern times. Professor Jackman also determined that gerrymanders' persistence has increased markedly. In previous periods, a plan's initial asymmetry was only a moderately strong predictor of its future performance. But in the present decade, plans that have begun skewed have typically continued to tilt in the same party's direction as long as they have been in use.

There are two clear explanations for these troubling trends. One is that "technological advances have allowed gerrymanderers to gain better information about voters ... and draw boundaries with a finer pen."


These advances include individual-level data from enhanced voter files, automated redistricting algorithms, and rigorous sensitivity testing. The other driver is voters' rising partisanship. Split-ticket voting is rarer now than in earlier eras, and voters change their party preferences less from year to year.

As voters have become more partisan, legislators have grown more polarized. Both in state legislatures and in Congress, there is now virtually no ideological overlap between Democratic and Republican legislators.



1. Appellees have standing to bring their statewide claim. As a matter of precedent, every partisan gerrymandering challenge this Court has heard has been statewide in nature. Yet the Court has never suggested that it lacked jurisdiction due to the plaintiffs' lack of standing. More generally, standing "turns on the nature and source of the claim asserted." The "claim asserted" here is unquestionably statewide: the intentional, severe, durable, and unjustified dilution of Democratic votes throughout Wisconsin. It follows that if this claim is justiciable, Appellees have standing to pursue it.

The Court's racial gerrymandering cases are not to the contrary. Crucially, the "claim asserted" in these cases is district-specific: that "race was improperly used in the drawing of the boundaries of one or more specific electoral districts." Since this claim is limited to the design of particular districts, only these districts' residents have standing to bring it. The racial gerrymandering cases are also inapposite here because they involve the injury of racial classification. The harms alleged in this case, in contrast, are the completely different ones of vote dilution and viewpoint discrimination.

2. Partisan gerrymandering claims are justiciable under the district court's discernible and manageable test. As to discernibility, the test captures the constitutional wrongs of partisan gerrymandering. Gerrymandering violates both the Equal Protection Clause, by diluting the electoral influence of a targeted group of voters, and the First Amendment, by penalizing these voters because of their political beliefs. The test accurately addresses these violations. A district plan that fails the test is deliberately, highly, persistently, and unjustifiably dilutive. Such a map also seeks to-and does-subject certain voters to disfavored treatment due to their political philosophy.

The district court's test is also discernible because it is based on the concept of partisan symmetry. Partisan symmetry is a "comprehensive and neutral principle for drawing electoral boundaries." It is a "comprehensive" principle because it can be applied to any district plan. It is "neutral" as well because its very point is to treat the parties symmetrically in terms of the conversion of votes to seats. Partisan symmetry further corresponds to the Court's conception of gerrymandering and is distinct from proportional representation.

The district court's test is discernible as well because all of its elements are rooted in the Court's partisan gerrymandering case law, which establishes that any gerrymandering standard should require showings of discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification. The test does just that.


The district court's test is judicially manageable too. Its intent and justification prongs have already been employed-without any apparent difficulty-in other redistricting contexts. Likewise, its effect prong is easy to administer because the size and durability of a plan's partisan asymmetry can be ascertained using reliable social scientific techniques. As noted above, all asymmetry metrics tend to converge in competitive statewide environments like Wisconsin's. None of these metrics' scores-in Wisconsin or in any other state over nearly half a century-were disputed by Appellants. And there is widespread agreement that sensitivity testing is the appropriate method for evaluating the persistence of a plan's skew.

The district court's test is also workable because it reflects contemporary political realities. Both in Wisconsin and nationwide, party affiliation is the most potent driver of voter and legislator behavior. By examining the ballots cast for, and seats won by, each party's candidates, the test focuses on the key aspects of modern voting and representation.

The district court's test is "limited and precise" as well, in that its implications are confined to both parties' most egregious gerrymanders. The test's impact can be estimated by tallying the number of highly asymmetric plans designed by a single party in recent decades. This number is small, and pales compared to the vast volume of redistricting litigation over other claims. The number also includes roughly equal shares of pro­-Democratic and pro-Republican maps, thus dispelling any fear that the test is a stalking horse for partisan interests.

Nor is it difficult for jurisdictions to avoid liability under the district court's approach. A state may ensure that its plan is not severely and durably asymmetric by using the same data and analyses as Act 43's drafters­, except to limit partisan unfairness rather than to augment it. A state may also eliminate any possibility of discriminatory intent being found by adopting a bipartisan or nonpartisan redistricting process. And if a state learns that its political geography or its valid redistricting goals impel a significant asymmetry, it is not placed in an impossible position. Rather, it is insulated from liability because the asymmetry is then justified.

3. The Court should adhere to its holding in Vieth that noncompliance with traditional districting criteria is not an element of a partisan gerrymandering claim. As the plurality explained (and Justice Kennedy agreed), "it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution." Gerrymanders, that is, may exist even when they do not announce themselves with strange shapes or carved communities.

4. The Court should reject Appellants' request for a remand on the issue of entrenchment. This issue was not sprung on Appellants after trial. Rather, from the very beginning of the case, both Appellees and the district court made clear their emphasis on the durability of a party's advantage.

In any event, contrary to Appellants' claim, it is far from "undisputed" that Act 43 complies with traditional criteria.. As documented above, the plan (1) divided seven more counties than any other map in Wisconsin's modern history; (2) had less compact districts, on average, than any other Wisconsin map for which data is available; (3) moved seven times more people than necessary to achieve population equality; (4) paired six more Assembly incumbents than a previous map paired for both legislative chambers; and (5) violated Section 2 of the Voting Rights Act through its treatment of Latino voters. This poor record is what arises when mapmakers use traditional principles as a fig leaf to conceal their pursuit of partisan gain.


Appellants' final argument is that they were caught unaware by the district court's consideration of partisan entrenchment, and so are entitled to a remand on this issue. This claim cannot be seriously entertained. Appellees stressed the durability of a party's advantage throughout the litigation, and the district court made it abundantly clear, prior to trial, that it shared this concern.

Starting with their complaint, Appellees argued that an "extremely durable" gerrymander is constitutionally problematic because "it is unlikely that the disadvantaged party's adherents will be able to protect themselves through the political process." Appellees maintained this "emphasis on the durability of gerrymandering" in every subsequent filing. At trial too, Appellees presented extensive evidence about the intent of Act 43's drafters to entrench the Republican Party in power, as well as the persistent pro-Republican skew that in fact ensued.

For its part, the district court could not have indicated more plainly its interest in entrenchment. The court stated in its summary judgment decision:

"Focusing on durability makes some sense because it is an indication that ordinary political processes cannot fix the problem." "Durability is an appropriate measure of discriminatory effect." "The collective will of the people should not be subverted indefinitely." And "plaintiffs should show that defendants had the intent to prevent the minority party from regaining control throughout the life of the districting plan."

Appellants apparently overlooked these comments (as well as Appellees' filings and evidence). But they have only themselves to blame for this oversight, and are not entitled to a remand because of it.


For the foregoing reasons, the Court should affirm the decision below.