In the

Supreme Court of the United States

ROBERT A. RUCHO, et. al., Appellant

v.

COMMON CAUSE, et al., Appellees.

 

BRIEF FOR APPELLEES

INTRODUCTION

The 2016 North Carolina Congressional Plan ("2016 Plan" or "Plan") is the most overt, and likely the most extreme, partisan gerrymander this Court has ever seen. The official written criteria that gov­erned its creation expressly dictated pursuit of "Par­tisan Advantage" for the Republican Party and speci­fied a quota of "10 Republican" districts and just "3 Democratic" ones-despite a near-equal split among the State's voters. To implement this directive, the map-drawer admittedly "packed" as many Democrats as possible into three overwhelmingly blue districts and "cracked" the remainder across ten red ones. The heads of the Joint Redistricting Committee, Appel­lants here, publicly declared that the Plan enshrined into law their view that "electing Republicans is bet­ter than electing Democrats." One even proclaimed: "I acknowledge freely that the Plan is a political ger­rymander." As the District Court noted, with appro­priate distaste, Appellants "did not argue-and nev­er have argued-that this express partisan discrim­ination advances any democratic, constitutional, or public interest."

Unsurprisingly, the resulting map was extreme in every respect-whether viewed statewide or district­-by-district. The only reason the Plan did not contain even fewer Democratic districts, one Appellant ad­mitted, was because it was "not possible to draw such a map." By using computers to generate and analyze thousands of alternative districting plans, Common Cause Appellees' experts confirmed that it was all but impossible for a 10-3 split to arise under neutral districting criteria. Just as importantly, they confirmed that the particular districts where the Common Cause voter-plaintiffs live were extraordi­narily packed and cracked. Indeed, the votes of many of those plaintiffs would have carried greater weight in over 99% of alternative maps.

Appellants barely even pretend to defend the chal­lenged Plan. They take no issue with any of the Dis­trict Court's fact-finding and largely ignore the evi­dence that Common Cause Appellees adduced below. Their brief also contains no meaningful discussion of applicable First Amendment, Equal Protection, or Elections Clause doctrine, let alone any attempt to square those doctrines with the obviously illegal fea­tures of the Plan. Perhaps this is understandable: for Appellants, the Plan itself is beside the point. This appeal is merely a vehicle for their policy arguments seeking a green-light for all partisan gerrymanders.

But Appellants pay a price for ignoring the facts.

Justiciability turns not on abstract arguments, but on "the precise facts and posture of the particular case." And on the facts of this case, judicially manageable standards are easy to articulate and understand. Indeed, in last Term's gerrymandering cases, counsel for all parties acknowledged before this Court that a plan con­structed under an express policy to favor one party as the 2016 Plan was-would be unconstitutional. As Justice Alito recognized at the time, that is a "perfect­ly manageable standard." To hold that the 2016 Plan must nevertheless remain in effect because other cas­es with other facts might present more complex is­sues would be the opposite of the judicial caution and minimalism that Appellants profess to value. 

Appellants' "political question" arguments also fail on their own terms. On countless occasions, including Baker itself, this Court has rejected the notion that the Elections Clause is a textual bar to judicial re­view of State election regulations. And this Court's existing precedents provide perfectly "discoverable and manageable standards" for adjudicating parti­san-gerrymandering claims. Specifically, by burden­ing the political expression and associational rights of Common Cause Appellees, including the North Caro­lina Democratic Party and individual voters, based on viewpoint and identity, Appellants violated the First Amendment. By intentionally discriminating against Appellees without adequate justification, Appellants violated the Equal Protection Clause. And by nakedly seeking to dictate the outcomes of federal elections, Appellants exceeded the Elections Clause's limited grant of power to the States.

None of these principles is novel, and nothing in this Court's jurisprudence suggests that they are in­applicable to redistricting, alone among all forms of State election regulation. To the contrary, it has long been settled that "a statute which is alleged to have worked unconstitutional deprivations of plaintiffs' rights is not immune to attack simply because the mechanism employed by the legislature is a redefini­tion of political boundaries."

In the end, Appellants' argument for judicial abdi­cation comes down to this: partisan-gerrymandering claims are "politically fraught," and entertaining them would therefore lead the public to view the Court as a partisan body. Appellants have it backwards. Elected officials of both parties commit this sin. And ordinary Americans of both parties detest it.

If Appellants' warning sounds familiar, it should: the exact same argument was made for judicial inac­tion in Baker. Fortunately, the Baker Court rejected that argument and upheld a nonpartisan constitu­tional principle that virtually all Americans now em­brace. As a result, "national respect for the courts" was greatly "enhanced." The Court should do the same here. 

STATEMENT OF THE CASE

A. Factual Background

1. The 2011 Plan

North Carolina is a true "purple state," its voters split almost equally between Democratic and Repub­lican congressional candidates. Its delegation once reflected this, often dividing 7-6 or 6-7. That changed markedly when the Republican Party cap­tured the General Assembly in 2010, "giving it ex­clusive control over" redistricting. On a party­-line vote, it adopted a new map (the "2011 Plan") that yielded a 9-4 Republican supermajority in the 2012 election, even though Democratic candidates received more votes statewide. That advantage grew to 10-3 in 2014, even though Republican candidates re­ceived only 54% of the vote.

This Court reviewed the 2011 Plan in Cooper v. Harris (2017), which alleged that two districts were racially gerrymandered. The State's "defense" was that the 2011 Plan was a partisan ger­rymander, not a racial one. The map-drawer, Dr. Thomas Hofeller, testified that partisanship "was the primary  determinant in the drafting" of that plan, both overall and on a district-specific basis. Hofeller explained that his "primary goal" was "to create as many districts as possible in which GOP candidates would be successfull" and "to minimize the num­ber of districts in which Democrats could elect a Democratic candidate." Before this Court, the State's counsel explained that Hofeller "drew the map to draw the Democrats into 'packed' districts and the Republicans out of them."

This Court affirmed the judgment invalidating the two challenged districts as predominantly race ­motivated, without disputing the State's admission that its intent regarding the remaining districts and the 2011 Plan overall was "primarily" partisan.

2. Creation Of The 2016 Plan

In February 2016, the District Court or­dered a remedial map. The heads of the Joint Redis­tricting Committee, Rep. David Lewis (R) and Sen. Robert Rucho (R), instructed Hofeller to remedy the two invalidated districts' racial infirmities while "maintaining" a predetermined partisan split of "10 Republicans and 3 Democrats."

Hofeller used past election results "to create a composite partisanship variable indicating whether, and to what extent, a particular precinct was likely to support a Republican or Democratic candidate." As he testified, this variable is highly predic­tive of future voting patterns. Hofeller then used that partisanship index to guide his line-­drawing, with the goal of "cracking" and "packing" Democrats to minimize their voting strength. Proceeding district-by-­district, Hofeller "divided counties and communities of interest along partisan lines, and joined sections of the state that have little in common."

Lewis then presented for the Joint Redistricting Committee's retroactive approval a set of written "criteria" that Hofeller had employed. Several were explicitly partisan. Most obviously, the criterion labeled "Partisan Advantage" stated that "the Com­mittee shall make reasonable efforts to construct dis­tricts to maintain" a "partisan makeup  of 10 Republicans and 3 Democrats." Another crite­rion, labeled "Political data," stated that "the only data other than population data to be used shall be election results in statewide contests since January 1, 2008. " The Committee adopted these partisan criteria on party-line votes. The 2016 Plan, Hofeller agreed, "adhered" to them.

Lewis proclaimed the intentions behind the Plan on the record, both during Committee hearings and on the House floor:

"We want to make clear that ... to the extent we are going to use political data in drawing this map, it is to gain partisan advantage."

"I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it's possible to draw a map with 11 Republicans and 2 Democrats."

"I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country."

"I acknowledge freely that the 2016 Plan would be a political gerrymander, which is not against the law."

Rucho agreed, stating that there is "nothing wrong with political gerrymander­ing" because "it is not illegal."

Based on these statements, both chambers of the General Assembly then approved the 2016 Plan, also ''by party-line votes." All these findings of the District Court are undisputed.

3. Effect Of The 2016 Plan

In the 2016 election, Republicans prevailed in all ten cracked districts where the mapmakers "intended and expected them ... to prevail," and Democrats prevailed in all three packed districts drawn to be "predominantly Democratic." Republican candi­dates thus won 77% of the total seats despite receiv­ing just 53% of the statewide vote.

The 2016 Plan's intentional packing and cracking harmed the Common Cause voter-plaintiffs by dilut­ing their voting strength in the districts where they live. The extensive proof of crack­ing and packing and its resulting dilutive effect was uncontroverted at trial, and the District Court's find­ings accepting this proof are not challenged on appeal.

For example, Common Cause Appellees, Brewer and McNeill, are Democratic voters in the heavily Democratic Fayetteville area. The Plan intentionally cracked that area and submerged the pieces within heavily Republican Congressional Districts.

Appellants' own expert "conceded that this area constituted a 'cluster of Democratic' voters, that the 2016 Plan 'split," and that absent this "cracking," either district "would not have been a safe Re­publican district." Due to this cracking, Brewer was relegated to heavily Republican districts, intentionally diluting their votes.

Similar district-specific harms were visited on Common Cause voter-plaintiffs across the State. For example, both Appellant Lewis and Appellants' ex­pert conceded that the 2016 Plan "split Buncombe County and the City of Asheville, where Democratic voters are concentrated, between safe-Republican, and "'cracked' the Democratic city of Greensboro be­tween Republican Districts. Common Cause Appellees residing in the resulting districts had their votes diluted.

The 2016 Plan, and the shape of its individual dis­tricts, also caused Appellees "associational injury." This proof, too, was uncontroverted at trial, and the Dis­trict Court's findings accepting it are not challenged on appeal. The Plan made it more difficult for the voter-plaintiffs living in cracked districts to raise money, recruit candidates, and enlist volunteers for activities like canvassing. The burden on the North Carolina Democratic Party was even greater. Its rep­resentative gave unrebutted testimony that "the way the congressional districts were drawn made it extremely difficult" to "get the attention of the na­tional congressional campaign committees and other lawful potential funders for congressional races in those districts." He also testified that the way the Plan's districts were drawn made it "harder to recruit candidates" to run in those dis­tricts, "given that the deck seems to be stacked." Indeed, in the 2018 election cycle, the Party was unable to recruit any candidate willing to run in the cracked CD3, and so the Republican ran unop­posed.

B. Proceedings Below

1. Trial and Appeal

In August 2016, Common Cause Appellees-15 voters from all 13 districts in the 2016 Plan, the North Carolina Democratic Party, and the nonparti­san organization Common Cause-filed a challenge to the Plan under the First Amendment, Equal Protec­tion Clause, and Article I, 2 and 4.

In October 2017, the District Court held a four ­day bench trial. As the facts were essentially undis­puted, the trial focused on experts. Common Cause Appellees presented testimony from Dr. Jonathan C. Mattingly, a mathematician at Duke University, and Dr. Jowei Chen, a political scientist at the University of Michigan. Drs. Mattingly and Chen used computer algo­rithms to generate thousands of alternative district­ing maps using only traditional criteria and disre­garding partisan data. They then used actual election results from each precinct in North Carolina to simu­late elections under each alternative map. The re­sults of these analyses were striking, demonstrating the extreme nature of Appellants' gerrymander.

Dr. Chen generated 3,000 alternative maps, under which the composition of North Carolina's delegation, mostly split 7-6 or 6-7. None of the 3,000 maps yielded a Repub­lican advantage as great as the 10-3 split of the 2016 Plan. Dr. Mattingly, meanwhile, generated over 24,000 al­ternative maps using traditional nonpartisan criteria. Fewer than 1% of them resulted in a Republican advantage as lopsided as 10-3. Thus, on a statewide basis, the 2016 Plan was literally off the charts - an "extreme statistical outlier" that could not be ex­plained by reference to traditional districting criteria.

This analysis showed the extreme nature of the gerrymander on a district-specific level. As Appel­lants conceded, they intentionally packed Democrats into three districts. The percentage of votes cast for Democratic candidates in these packed districts was signif­icantly higher than the percentage of votes that would have been cast for Democratic candidates in the corresponding districts in the overwhelming majority of Dr. Mattingly's 24,000 neutrally drawn maps. The gerrymander, in other words, rendered those packed districts extreme outliers.

The same is true for the Plan's cracked districts.

This district-specific proof was coupled with Ap­pellants' admissions of district-specific cracking and packing, including admissions of cracking "natural Democratic clusters" in six districts. The original trial record thus demonstrated widespread district-specific cracking and packing­ and therefore, vote dilution-in districts where the Common Cause voter-plaintiffs reside.

In January 2018, the District Court held the Plan an unconstitutional partisan gerrymander. This Court stayed that judgment pending appeal. On June 25, 2018, this Court vacated and remanded for further consideration in light of Gill.

2. Remand

On remand, the District Court requested briefing on Gill's impact. Common Cause Appellees highlighted the ample evidence of district-specific packing and cracking already in the record-as admitted by Ap­pellants and Dr. Hofeller, and as testified to by Dr. Mattingly. They also submitted a supplemental dec­laration from Dr. Chen. He used each Common Cause voter-plaintiffs residential address to determine the district in which that plaintiff would have resided in 2,000 of his alternative maps. He then determined how the partisan vote split of each plaintiffs actual district under the 2016 Plan com­pared to the vote split of the array of "hypothetical districts" in which he or she might have been placed.

This analysis provides further evidence of the ex­treme packing and cracking of the 2016 Plan and links it directly to each Common Cause voter ­plaintiff. Each of the Common Cause voter-plaintiffs who re­sides in a packed district under the 2016 Plan would have resided in a less Democratic-leaning (i.e., less packed) district in almost all alternative maps. This shows that the votes of the Common Cause voter-plaintiffs in these packed districts were diluted - essentially wasted, ­exactly as Appellants intended.

The results for the Plan's cracked districts were just as egregious. Each of the Common Cause voter ­plaintiffs placed in a majority-Republican district un­der the 2016 Plan would have resided in a more Democratic-leaning (i.e., less cracked) district in the overwhelming majority of alternative maps. And again, for most of these plaintiffs, their actual districts are extreme outliers. Indeed, many of these cracked voter-plaintiffs would likely have been placed in Democratic-majority districts had neutral criteria been used.

On August 27, 2018, the District Court issued a new opinion. The majority held that at least one plaintiff had standing to challenge each of the Plan's 13 districts under a vote-dilution theory and that the plaintiffs further had non-dilutionary standing to challenge the Plan as a whole. Judge Osteen agreed that at least one plaintiff had standing to challenge 10 of the Plan's 13 districts under a vote­ dilution theory, but disagreed that voters living in packed districts suffer dilutionary injury. The District Court also held unanimously that Appellees' claims were justiciable under this Court's precedents.

On the merits, the majority held that 12 of the Plan's 13 districts violate the Equal Protection Clause, because they were drawn with the predominant intent to discriminate against Demo­cratic voters, and did so, without any legitimate justi­fication. Judge Osteen agreed that the nine of those 12 districts that were cracked violate the Equal Protection Clause. The majority also held that the Plan violates the First Amendment because, inter alia, it constitutes viewpoint discrimination without legitimate justification. Finally, the Court held unanimously that the Plan violates Article I, 2 and 4, because it was nakedly intended to "dic­tate federal electoral outcomes."

Because it was impracticable to redistrict in time for the November 2018 elections, the District Court stayed its judgment on the condition, accepted by Ap­pellants, that this appeal be pursued expeditiously.

C. The 2018 Election

The 2018 election was a nationwide ''blue wave."

Democrats added 40 seats in the House of Represent­atives, their largest gain since the Watergate election of 1974. The Democratic popular-vote margin was 8.6%, the greatest on record for a party in the minority heading into an election. But the red wall in North Carolina largely stood fast, thwarting demo­cratic self-correction; election-night returns indicated yet another 10-3 result.

Later, however, irregularities emerged regarding Congressional District 9, where the Republican was initially reported to have prevailed by just 900 votes. On February 21, 2019, the election was set aside and a new election was ordered for that district. This will give Common Cause Appellee John McNeill another chance to vote for the candidate of his choice (albeit with the deck still stacked against him). Meanwhile, Mr. McNeill has no representative in Congress.

SUMMARY OF ARGUMENT

As the District Court correctly held, Common Cause Appellees have standing to bring their claims; those claims are justiciable; and the 2016 Plan-as a whole and in all but one of its individual districts-is unconstitutional.

Standing. Appellants' standing argument boils down to ignoring this Court's unanimous holding in Gill and ignoring Common Cause Appellees' evidence.

Gill held that an individual establishes vote­ dilution standing by showing that he was "placed in a 'cracked' or 'packed' district" so that "his vote carries less weight" than it would have carried in an alternative, neutrally-drawn district. Appellants admitted-indeed, bragged ­that the Plan intentionally packed and cracked Dem­ocratic voters, and Common Cause Appellees proved it was true. Using only traditional, neutral criteria, their experts generated tens of thousands of alterna­tive maps and showed that the Plan's individual dis­tricts were extreme statistical outliers, causing ex­treme dilution of the voter-plaintiffs' votes. Gill ap­proved of this technique; the District Court found the evidence compelling; and Appellants do not challenge it here. Indeed, they do not mention Common Cause Appellees' expert analyses at all. 

As the Gill concurrence recognized, partisan ger­rymanders also inflict cognizable burdens on voters' and political parties' rights of expression and associa­tion. Common Cause Appellees, who include the North Carolina Democratic Party, provided unrebut­ted evidence of these harms. These included marked­ly diminished ability to fundraise and to recruit can­didates and volunteers. Indeed, North Carolina's CD3 was so extreme that, in 2018, no Democrat was will­ing to run in it.

Justiciability. Without saying so directly, Appel­lants argue that the Court should overrule its holding that par­tisan-gerrymandering claims are justiciable. They maintain that the Court may not hear this case-or any other case challenging a partisan gerrymander ­pursuant to the "political question" doctrine. But this argument is unmoored from the doctrine as this Court defined it in Baker and has applied it since. In particular, the doctrine provides no license for the Court to turn away claims because (in Appellants' words) they are "politically fraught" or "divisive." Nor does it permit a preemptive bar on entire categories of disputes-e.g., "partisan­ gerrymandering cases"-without a "discriminating inquiry into the precise facts and posture of the par­ticular case."

Appellants argue that partisan-gerrymandering claims present political questions because the Elec­tions Clause (Art. I, 4) "textually commits" the rem­edying of unconstitutional districting plans to State legislatures and Congress alone. But the Court has rejected this argument, either expressly or implicitly, every time it has reviewed a State election regulation. Accepting it now would not only turn parti­san-gerrymandering claims out of court; it would raze this Court's election-law jurisprudence in toto.

Appellants also argue that this case presents a po­litical question because there is "a lack of judicially discoverable and manageable standards for resolving it." But whatever may be true in other cases, the claims in this case could not be simpler or more "manageable." As Justice Kennedy observed extreme districting plans such as the 2016 Plan that require partisan discrimination on their face are per se un­constitutional.

More broadly, "discoverable and manageable" standards do exist in partisan-gerrymandering cases: namely, this Court's well-settled precedents under the First Amendment, Equal Protection Clause, and Elections Clause. The "standards" that Common Cause Appellees offer here are just as understandable and applicable as those that this Court applies in any number of constitutional and statutory contexts. And the types of evidence that Common Cause Appellees offered to satisfy those standards-alternative maps and probability distributions derived from such maps-are both objective and familiar.

Appellants have one central "manageability" ar­gument that they return to time and again: the Dis­trict Court's tests do not draw a bright line between a permissible amount of politics and "too much" poli­tics. But this complaint misconceives Common Cause Appellees' claims. The infirmity in the 2016 Plan is not that "political considerations" per se played an "excessive" role in its creation. It is that the Plan, and its individual districts, was drawn with the predominant intent to discriminate invidiously on the basis of political expression and association. The question, in other words, is not one of degree (how much "politics" is "too much?"), but one of kind (were political considerations used for in­vidious ends?). If invidious intent is present, harm sufficient to establish standing is all that is required. Contrary to Appellants' claims, while the Court has permitted benign uses of political data in districting, it has never blessed invidious political discrimination in districting in any amount-let alone where it pre­dominates over all other motivations, as it did here.

Merits. The 2016 Plan is unconstitutional under three different bodies of well-established case law. The Plan's express imposition of burdens on the basis of political expression and association violates the First Amendment. Its intentional invidious discrimi­nation violates the Equal Protection Clause. And its naked intent to "disfavor a class of candidates" and "dictate electoral outcomes" violates the Elections Clause. Appellants do not even engage with this Court's substantive doctrine on these issues, let alone distinguish the binding precedents on which the Dis­trict Court properly relied.

 

CONCLUSION

For the reasons above, this Court should affirm the District Courts judgment.