Supreme Court of the United States
ROBERT A. RUCHO, et. al., Appellant
COMMON CAUSE, et al., Appellees.
BRIEF FOR APPELLEES
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:
á "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."
á "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."
á "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."
á "I acknowledge freely that the 2016 Plan would be a political gerrymander, which is not against the law."
á 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.
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.
For the reasons above, this Court should affirm the District CourtÕs judgment.