In the

Supreme Court of the United States

ROBERT A. RUCHO, et. al., Appellant

v.

COMMON CAUSE, et al., Appellees.

 

BRIEF FOR APPELLANTS

INTRODUCTION

Fifteen years ago, a majority of this Court declined to wade into the political thicket of refereeing claims that legislatures organized along partisan lines were too partisan in their redistricting. The past two years have confirmed the wisdom of that decision. Since a federal court in Wisconsin became the first court in decades to identify and invalidate an unconstitutional partisan gerrymander (only to have this Court vacate its decision for want of standing), three more maps have been invalidated, at least six more have been challenged, five judges have been threatened with impeachment over a partisan gerrymandering case, and nearly a dozen pleas for intervention in such cases have reached this Court. All of that is in the waning years of the decennial cycle, and without a clear signal from this Court that such claims are justiciable.

Predictably, this onslaught of litigation has done nothing to bring courts any closer to discerning judicially manageable standards to guide legislatures and reviewing courts. Instead, like so many before them, the latest courts to take up that misguided charge cannot even agree on a single test. The decision below is a case in point: A two-judge majority of a three-judge district court in North Carolina laid out four separate theories as to how partisan gerrymandering purportedly violates four separate provisions of the Constitution. And not one of those tests provides anything close to a manageable standard for answering the original unanswerable question of how much politics is "too much."

The reason for that failure is not a lack of judicial effort or imagination. Rather, the repeated failures to articulate judicially manageable standards are a direct result of the absence of any constitutional text that limits the partisanship of state legislatures or suggests any judicially administrable line for courts to enforce. To the contrary, the framers textually committed this politically fraught task elsewhere-to politically accountable state legislatures subject to supervision by Congress. That delegation reflected not only the judgment that this inherently political task is appropriate for politically accountable legislatures, but also the view that the task is inappropriate for federal courts that need institutional independence from politics to discharge their core functions. Thus, the failure to discern judicially manageable standards for the claims here is not some judicial failing, but the framers' design.

The decision below is wrong across the board. Indeed, the court did not even get the threshold standing question right. But the decision below also confirms the more fundamental reality that courts simply do not have any business making value-laden judgments about how much politics is too much in a process that will never be free of politics. This Court should declare partisan gerrymandering claims nonjusticiable once and for all and put an end to the effort to reassign the inherently political task of districting to the federal courts.

 

STATEMENT OF THE CASE

A.    Historical and Legal Background

Political gerrymanders are not new to the American scene. They are as old as-indeed, older than-the Republic. The first documented gerrymander on this side of the Atlantic occurred in the early 1700s in Pennsylvania, where the surrounding counties colluded to suppress the city of Philadelphia's political power. A few years later, in 1732, an occurrence of the gerrymander, of especial interest, appeared in the colony of North Carolina, where the governor was engaged in dividing precincts in an effort to secure a majority of the members of the lower house or a minority sufficiently strong to block legislation.

Partisan gerrymandering thus was alive and well (though not yet known by that name) at the time of the framing. The framers likewise were acquainted with the broader tendency of political legislatures to tailor electoral regulations to benefit favored candidates or factions. James Madison, for instance, expressly acknowledged that legislatures could "take care so to mould their regulations as to favor the candidates they wished to succeed."

The framers' response to these concerns was not to assign the delicate task of districting to a less politically accountable body that depended on its independence from partisan politics to discharge its primary function. In other words, the framers did not give either primary responsibility or a secondary policing function over this politically fraught task to the federal judiciary. Instead, the framers responded just as they did in so many other parts of the Constitution: They countered ambition with ambition, with a structural system of checks and balances that attempted to harness the political nature of legislatures, rather than put the judiciary in the impossible position of determining when legislatures acted too much like legislatures. Specifically, the Constitution gave state legislatures the power to prescribe "the times, places and manner of holding elections for Senators and Representatives," but gave Congress the power to "at any time by law make or alter such regulations."

No one even intimated that the federal courts should provide the check on the States' "partisan manipulation" or that their essential independence could survive the assignment. From the very beginning, then, the Constitution has recognized that any federal remedy for partisan gerrymandering of congressional districts lies with Congress, not with the courts.

Of course, partisan gerrymandering did not end with the ratification of the Constitution. "The notoriously outrageous political districting in Massachusetts that gave the gerrymander its name" occurred in 1812. And by 1840, gerrymandering had become such a recognized force in party politics that it was generally attempted in all legislation enacted for the formation of election districts. Congress was not blind to these practices. To the contrary, many of the traditional districting criteria that govern state districting today trace their roots to federal legislation enacted in the mid-1800s to check partisan gerrymandering.

For instance, in the Apportionment Act of 1842, Congress provided that Representatives must be elected from single-member districts "composed of contiguous territory." Congress imposed the same requirement again in the Apportionment Act of 1862, and in 1872 Congress added the restriction that districts must "contain as nearly as practicable an equal number of inhabitants".

This Court has repeatedly recognized that partisan gerrymandering remains a reality. And while the Court has never articulated justiciable limits on partisan gerrymandering, it has repeatedly stated that a degree of partisan gerrymandering can be constitutional. For example, in a case involving a racial gerrymandering challenge to a North Carolina congressional district, this Court held that "a jurisdiction may engage in constitutional political gerrymandering." In a subsequent decision in that same litigation, this Court upheld that same district because "the State had articulated a legitimate political explanation for its districting decision ­namely, "the creation of a safe Democratic seat." In more recent years, including in cases that presaged this very litigation, members of this Court have reiterated that partisan gerrymandering is constitutional, even if one finds it "distasteful." In short, this Court has never embraced the proposition that partisan gerrymandering is malum in se, or that the Constitution wholly forbids the political body to which it assigns the drawing of districts from drawing districts to try to achieve political gain.

B.    North Carolina's Congressional Map

This case arises from the most recent round of congressional redistricting in North Carolina. In February 2016, a divided three-judge panel for the Middle District of North Carolina concluded that two districts in North Carolina's 2011 congressional districting map were unconstitutional racial gerrymanders. In defending those districts, the General Assembly tried to argue that it was the product of partisan rather than racial considerations. The district court rejected that argument, not because it found a partisan motive no more constitutional than a racial one, but because it deemed the record insufficiently clear that the legislature was actually motivated by politics rather than race. The court then gave the General Assembly 14 days to draw a new map.

That two-week deadline made time of the essence. The chairmen of the most recent redistricting committee, Senator Robert Rucho and Representative David Lewis, promptly engaged expert mapmaker Dr. Thomas Hofeller to assist in drawing a new map. They instructed Dr. Hofeller to comply with traditional districting criteria and all state and federal districting requirements and made clear that he should not consider racial data at all. In response to the district court's holding that the consideration of politics must be evident in the record, they instructed Dr. Hofeller to consider political data and to endeavor to draw a map that would likely preserve the existing partisan makeup of the congressional delegation.

Meanwhile, the General Assembly appointed a new districting committee, which adopted seven criteria to govern the redistricting effort. Those criteria included creating districts with populations "nearly as equal as practicable"; ensuring contiguity and compactness by, among other things, avoiding county splits; and making reasonable efforts to avoid pairing incumbents. The committee also adopted two criteria addressing racial and political data. Having just been faulted by the district court with continuing jurisdiction for unduly considering race and not having political considerations evident in the record, the committee endeavored not to make the same mistakes twice. First, the committee adopted a criterion expressly stating: "Data identifying the race of individuals or voters shall not be used in the construction or consideration of districts in the 2016 Contingent Congressional Plan." Second, the committee adopted a criterion labeled "Partisan Advantage," which provided: "The partisan makeup of the congressional delegation under the enacted plan is 10 Republicans and 3 Democrats. The Committee shall make reasonable efforts to construct districts in the 2016 Contingent Congressional Plan to maintain the current partisan makeup of North Carolina's congressional delegation."

During the committee hearing that preceded the adoption of this criteria, Representative Lewis made sure that it was clearly stated and understood that, "to the extent we are going to use political data in drawing this map, it is to gain partisan advantage," and not because of any correlation between political data and race. He thus acknowledged freely that this would be a political gerrymander, which he explained is not against the law. Unsurprisingly, that candid and accountable expression drew objections from many Democratic members, including some of the same members who had drawn the acknowledged Democratic partisan gerrymander that this Court previously upheld. When one senator asked why trying to preserve a 10-3 balance was "fair," Representative Lewis joked, ''because I do not believe it's possible to draw a map with 11 Republicans and 2 Democrats."

Ultimately, the committee adopted five of the seven districting criteria nearly unanimously and adopted the two dealing with racial data and partisan advantage on a party-line vote. The committee approved the map by a party-line vote, and the General Assembly enacted the map ("2016 Map") with minor modifications, on party-line votes.

The 2016 Map compares favorably to every congressional map North Carolina has used over the past 25 years. The 2016 Map divides only 13 (out of 100) counties and splits only 12 (out of more than 2000) precincts across the entire State. Moreover, no county is split between more than two districts..

Plaintiffs nonetheless filed objections to the 2016 Map, including a partisan gerrymandering challenge, but the district court rejected them. The 2016 Map took effect in June 2016 and has governed the past two election cycles.

C. Pre-Gill District Court Proceedings

1. Shortly after the district court approved the 2016 Map, two groups of plaintiffs filed the two lawsuits that give rise to this appeal. In August 2016, Common Cause, the North Carolina Democratic Party, and 14 individual voters filed suit against appellants (Senator Rucho, Representative Lewis, and two additional legislators) and various other state defendants alleging that the 2016 Map is an unconstitutional partisan gerrymander. A suit brought by the League of Women Voters ("League") and 12 individual voters followed the next month.

Both complaints alleged that the map violates the Equal Protection Clause and the First Amendment. The Common Cause plaintiffs further alleged that the map violates both §2 and §4 of Article I. Both sets of plaintiffs claimed standing to assert "statewide" challenges to the 2016 Map as a whole, and the Common Cause plaintiffs claimed "standing to assert district-by-district challenges" to every district.

The cases were assigned to a three-judge district court. The court consolidated the cases and originally scheduled them for trial in June 2017, but subsequently postponed trial on its own motion. Amidst the pretrial proceedings, this Court agreed to hear Gill v. Whitford. Appellants asked the district court to stay proceedings pending resolution of Gill, but the court refused, forging ahead with a four-day bench trial in October 2017.

2. Three months later, the district court issued a divided opinion authored by Judge Wynn holding that plaintiffs had statewide standing to press their claims and finding the 2016 Map unconstitutional under the Equal Protection Clause, the First Amendment, and the Elections Clauses. The majority immediately enjoined the State from using the 2016 Map in future elections and again gave the General Assembly a mere two weeks to pass a new congressional map. After the court refused to stay its order, appellants filed an emergency stay application with this Court. This Court granted that application and stayed the order pending the filing and disposition of a jurisdictional statement.

On June 18, the Court issued its decision in Gill, concluding that the plaintiffs had not demonstrated standing to bring their statewide challenge to Wisconsin's districting map. This Court then vacated the district court's judgment in this case and remanded for further consideration in light of Gill.

D. Post-Gill District Court Decision

Two months later, the district court issued a 321 page divided opinion once again invalidating the 2016 Map. The majority opinion, again authored by Judge Wynn, concluded that plaintiffs have standing to press their partisan gerrymandering claims, that such claims are justiciable under the Equal Protection Clause, the First Amendment, and §2 and §4 of Article I, and that the 2016 Map violates all four provisions.

1. Starting with the equal protection claims, the court acknowledged that Gill rejected the "statewide" standing theory that plaintiffs had previously asserted. The court further conceded that Common Cause and several individual plaintiffs lacked standing because they failed to claim anything other than a statewide injury. Nonetheless, the court concluded that individual "Plaintiffs who reside and vote in each of the thirteen challenged congressional districts" had standing to press vote-dilution claims under the Equal Protection Clause.

The court concluded that these "dilutionary injuries" afforded these same plaintiffs standing under the First Amendment. In addition, the court concluded that various individual plaintiffs had standing to press "non-dilutionary' claims under the First Amendment because, for example, they "had difficulty convincing fellow Democrats to come out to vote." The court reasoned that, ''because these injuries are statewide, such Plaintiffs have standing to lodge a First Amendment challenge to the 2016 Plan as a whole."

Finally, the court concluded that the Common Cause plaintiffs have standing to press their Article I claims. Those claims, the court posited, are "premised on federalism," and so "do not stop at a single district's lines." Although the court acknowledged that such "structural harm does not absolve litigants from alleging particularized injuries," it found that requirement satisfied because at least one plaintiff in each district alleged "dilutionary injuries," and because plaintiffs had proven adequate "non-dilutionary injuries",e.g., "difficulty encouraging people to vote on account of widespread belief that electoral outcomes are foregone conclusions." "Because these structural and associational harms have statewide implications," the court continued, they "are sufficient to confer standing on a statewide basis" under the Elections Clauses.

2. Turning to justiciability, the court deemed itself bound by Davis v. Bandemer (1986), to conclude that partisan gerrymandering claims are justiciable. The court independently saw "good reason" to hold such claims justiciable, maintaining that partisan gerrymandering is "contrary to the republican system put in place by the Framers." As for the thorny problem of identifying a judicially manageable standard for determining how much consideration of politics is too much, the court declared that "a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an 'acceptable' level of partisan gerrymandering from 'excessive' partisan gerrymandering" because "the Constitution does not authorize state redistricting bodies to engage in partisan gerrymandering" at all.

3. Proceeding to the merits, the court began by purporting to discern a judicially manageable standard for adjudicating plaintiffs' equal protection claims. To prove such claims, the court concluded, a plaintiff must demonstrate (1) "discriminatory intent" and (2) "discriminatory effects," at which point the burden shifts to the defendant to prove that (3) those "discriminatory effects are attributable to the state's political geography or another legitimate redistricting objective." As to intent, although the court had just concluded that any amount of districting for partisan advantage is impermissible, it insisted that its equal protection analysis "does not rest" on that conclusion. Instead, the court "assumed" for the sake of argument that plaintiffs must show that "a legislative map-drawer's predominant purpose ... was to 'subordinate adherents of one political party and entrench a rival party in power.'" The court then found its "assumed" intent standard satisfied in all but one district based on a variety of "statewide" and "district-specific" evidence.

As to discriminatory effects, the court concluded that a plaintiff proves discriminatory effects whenever "the dilution of the votes of supporters of a disfavored party in a particular district is likely to persist in subsequent elections such that an elected representative from the favored party in the district will not feel a need to be responsive to constituents who support the disfavored party." Based on its review of assorted "partisan symmetry" metrics, including the "efficiency gap," "partisan bias," and the "mean-median difference," the court found "'strong proof of the 2016 Map's discriminatory effects" based on statewide evidence. The court also found "district­-specific evidence" of discriminatory effects in all but CD5. The court then determined that no legitimate redistricting objective could justify the dilution of  voters' votes, and so held that each of those twelve districts constitutes an invidious partisan gerrymander in violation of the Equal Protection Clause.

As to the First Amendment claim, the court acknowledged (with considerable understatement) that neither the Supreme Court nor lower courts have settled on a framework for determining whether a partisan gerrymander violates the First Amendment. But the court purported to discern a judicially manageable "three-prong test": (1) the challenged districting plan was intended to burden individuals or entities that support a disfavored candidate or political party, (2) the districting plan burdened the political speech or associational rights of such individuals or entities, and (3) a causal relationship existed between the governmental actor's discriminatory motivation and the First Amendment burdens imposed by the districting plan."

Discarding its assumption under the Equal Protection Clause, the court concluded that, under prong one, any intent to district for partisan advantage is suspect under the First Amendment. It further concluded that, under prong two, a plaintiff need only show more than a "de minimis" chilling effect or adverse impact on any First Amendment activity, which could be satisfied by testimony such as "it was really hard to try to galvanize people to participate," as well as evidence that Democrats had trouble "translating their votes into seats." Finding its novel test satisfied, the court held that the 2016 Map as an undifferentiated whole violates the First Amendment.

Finally, the court concluded that the 2016 Map violates the Elections Clauses. The court concluded that partisan gerrymandering violates §2 of Article I because it deprives "the People" of their right to elect Representatives, and violates §4 because it "exceeds" the States' "delegated authority" to draw districts. While the §4 violation was in part derivative of the majority's §2, equal protection, and First Amendment holdings, the court justified both of its Article I conclusions on the theory that partisan advantage is a categorically unconstitutional motivation for government action.

5. After concluding that the 2016 Map violates every constitutional provision plaintiffs invoked, the majority enjoined the State from using the map in future elections after November 2018 and gave the General Assembly three weeks to draw, consider, debate, and vote on a new congressional map. The court announced that it was open to enjoining use of the 2016 Map in the November 2018 midterm elections. But after plaintiffs agreed with appellants that such a remedy would be inappropriate, and further agreed with appellants that the court should stay remedial proceedings pending this Court's review, the district court entered a stay.

6. In November 2018, the State conducted the 2018 congressional elections. Republican candidates won seats in nine districts, and Democratic candidates won seats in three districts." The race in one district that the district court held was an unconstitutional pro-Republican gerrymander, remains so close that the State has not yet certified a winner.

SUMMARY OF ARGUMENT

While this Court has struggled for decades to find a judicially manageable standard to adjudicate partisan gerrymandering claims, the court below purported to find four different and perfectly administrable tests lurking within four different constitutional provisions. That conclusion is every bit as implausible as it sounds. In reality, plaintiffs do not even have standing to vindicate their partisan preferences in federal court, and their claims suffer from the even more basic flaw that they seek to have the courts adjudicate grievances that the framers wisely delegated elsewhere.

The first problem with plaintiffs' claims is that they lack standing to bring them. The claims here pre­date Gill, and at bottom are complaints about the partisan composition of the statewide congressional delegation. Although plaintiffs did their best to retrofit their claims in light of Gill, they still lack standing. The district court found it sufficient that certain plaintiffs' votes purportedly could have carried more weight in hypothetical, alternative district s­even if their candidates of choice were still projected to lose (or win) in those hypothetical districts. That is precisely the kind of "vote dilution" theory that this Court found lacking in Gill. And plaintiffs' purported "non-dilutionary' injuries-things like having a hard time convincing other Democrats to vote-are even less concrete and particularized than the generalized grievances that this Court rejected in Gill.

Plaintiffs' partisan gerrymandering claims fail for the more fundamental reason that they are nonjusticiable. This Court has identified two critical factors that render a claim nonjusticiable; a textual commitment to another branch and the lack of judicially discernible and manageable standards. Both factors make clear that partisan gerrymandering claims are not justiciable. First, the framers wisely delegated primary responsibility for the politically fraught task of redistricting to state legislatures subject to congressional oversight. That delegation reflects that this task is appropriate for politically accountable legislatures and affirmatively inappropriate for federal courts that depend on their independence and insulation from politics to discharge their core responsibilities. Second, three decades of judicial efforts have made only one thing clear: A judicially manageable test for adjudicating partisan gerrymandering claims does not exist. Those failed efforts are no accident. The Constitution does not impose affirmative limits on the partisan motivations of legislatures or provide any textual basis for developing administrable tests. Courts have been reduced to testing for an "intent" that is not constitutionally forbidden and for "effects" that look for deviations from a proportional representation baseline with no grounding in the Constitution.

The absence of judicially manageable standards is borne out by the decision below, which proposed four separate tests grounded in four different constitutional provisions. Each test is more sweeping and less forgiving than the last, and most purport to outlaw politics from districting entirely. Indeed, the district court all but conceded that there is no way to decide how much partisan motivation is "too much" when it announced at the outset that its own view is "any." That, of course, would provide an administrable test at the expense of rewriting the Constitution. The framers expressly delegated districting to the available entity perhaps most liable to influences of party and faction, subject to supervision by the branch of the federal government most susceptible to those same influences. To assert a judicial role to keep partisan politics-whether some or all-out of that process is to substitute contemporary sensibilities for the framers' design.

In all events, even if there were an identifiable constitutional line for extreme partisan gerrymandering, the 2016 Map would not cross it. By design, the 2016 Map fares well when measured by traditional districting criteria. It outperforms any recent North Carolina congressional map in terms of divided counties or split precincts. To be sure, the General Assembly was quite candid about its partisan objectives, but it had just been faulted by a federal court for lacking a clear record of political, rather than racial, motivation. It also had been reassured by this Court that at least some degree of intentional partisan gerrymandering is permissible. Those reassurances were correct, and the time has come for this Court to make clear that the Constitution does not provide courts with the tools or the responsibility to say how much partisan motivation is too much.

This case exemplifies all the problems with partisan gerrymandering cases. Plaintiffs have not suffered any constitutionally cognizable injury, let alone one that courts could actually identify and remedy. Instead, their grievance is a fundamentally political one that the framers delegated to the political branches and that Article III courts lack the power or the competence to vindicate. If this Court nonetheless wades into such disputes unarmed with administrable tests grounded in constitutional text but saddled with appellate jurisdiction, it will be exceedingly difficult to extricate itself. The costs will be measured not just in frustration in being unable to answer an unanswerable question, but in the public’s inability to understand the judicial role as distinct and apolitical. The framers wisely insulated this Court from all that by delegating this politically fraught responsibility elsewhere. This Court should resist the invitation to reassign that responsibility to the Article III courts.

CONCLUSION

This Court should reverse the decision below.