No. 16-588

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NEIL PARROTT, et al.,

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Appellants,

LINDA H. LAMONE and DAVID J. MCMANUS, JR.,Appellees.

On Appeal from the United States District Court for theDistrict of Maryland

MOTION FOR LEAVE TO FILE AMICI CURIAEBRIEF AND BRIEF OF THE CAMPAIGN LEGAL

CENTER AND THE SOUTHERN COALITION FORSOCIAL JUSTICE AS AMICI CURIAE IN SUPPORT

OF NEITHER PARTY

JESSICA RING AMUNSONMARINA K. JENKINSJENNER & BLOCK LLP1099 New York Ave., NWSuite 900Washington, DC 20001(202) 639-6000

December 8, 2016

NICHOLAS O. STEPHANOPOULOSCounsel of RecordUNIVERSITY OF CHICAGOLAW SCHOOL1111 E. 60th St., Office 510Chicago, IL 60637(773) 702-4226nsteph@uchicago.edu

Counsel for Amici

8LANK

MOTION FOR LEAVE TO FILE BRIEF AMICICURIAE OF THE CAMPAIGN LEGAL CENTER

AND THE SOUTHERN COALITION FORSOCIAL JUSTICE IN SUPPORT OF NEITHER

PARTY OUT OF TIME

Pursuant to Supreme Court Rule 37.2, counsel foramici curiae the Campaign Legal Center and theSouthern Coalition for Social Justice respectfullyrequest leave to file the attached brief amici curiae outof time.

Amici are aware that under Rule 37.2, an amicuscuriae brief in support of an appellant must be filed .....within 30 days after the case is placed on the docket or a .....response is called for by the Court, and that an amicuscuriae brief in support of an appellee shall be submittedwithin the time allowed for filing a brief in opposition ora motion to dismiss or affirm. Rule 37.2, however, doesnot specify the time limits for filing an amicus curiaebrief such as this--a brief in support of neither party.Counsel for amici mistakenly believed that this brief insupport of neither party was due seven days after themotion to affirm was filed. Only upon sending the briefto the printer on December 8, 2016--seven days afterthe motion to affirm was filed--did counsel learn that thebrief should have been filed on December 1, 2016.

As stated in footnote one of the attached brief,counsel for amici provided timely notice in accordancewith Supreme Court Rule 37.2(a) of amieis intention to

file this brief to counsel for the parties, and counsel forthe parties consented to the filing of this brief. Amicicuriae the Campaign Legal Center and the SouthernCoalition for Social Justice are nonwprofit organizationsdedicated to the protection and promotion of Americandemocracy. The Campaign Legal Center and theSouthern Coalition for Social Justice currentlyrepresent clients challenging district plans in Wisconsinand North Carolina as unconstitutional partisangerrymanders. Both organizations take an interest inthis appeal because it implicates the issues of (1) whichconstitutional guarantee is violated by partisangerrymandering and (2) what standard should be used toadjudicate partisan gerrymandering claims. These areprecisely the issues at stake in the cases being litigatedby amici.

Amici file this brief in support of neither party tourge this Court to either hold this case in abeyance untilthe Court is able to address partisan gerrymandering ina more suitable case, or use this Court’s summaryprocedures to resolve this matter. Amici believe thatthe brief will be of value to the Comet as it decides howto dispose of the appeal before it and thereforerespectfully request that the Court grant their requestto file this brief out of time.

Respectfully submitted,

JESSICA RING AMUNSONMARINA K. JENKINSJENNER & BLOCK LLP1099 New York Ave., NWSuite 900Washington, DC 20001(202) 639-6000

December 8, 2016

NICHOLAS O. STEPHANOPOULOSCounsel of RecordUNIVERSITY OF CHICAGOLAW SCHOOL

1111 E. 60th St., Office 510Chicago, IL 60637(773) 702-4226nsteph@uchicago.edu

Counsel for Amici

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........................................ii

INTEREST OF AMICI CURIAE ..................................1

SUMMARY OF ARGUMENT ........................................2

ARGUMENT ......................................................................6

I. This Case Is Not The Right Vehicle ToAddress The Proper Test For PartisanGerrymandering Claims Because It LacksA Detailed Record ..................................................6

II. This Case Is Not The Right Vehicle ToAddress The Proper Test For PartisanGerrymandering Claims BecauseAppellants’ Proposed Test Is DeeplyFlawed ....................................................................12

CONCLUSION ................................................................25

ii

TABLE OF AUTHORITIES

PageCASES

Bush v. Vera, 517 U.S. 952 (1996) ..............................16

Davis v. Bandemer, 478 U.S. 109 (1986) .....2, 6, 12, 13

Harris v. McCrory, 159 F. Supp. 3d 600(M.D.N.C. 2016), probable jurisdictionnoted, 136 S. Ct. 2512 (2016) .................................21

League of United Latin American Citizens v.Perry, 548 U.S. 399 (2006) ................................9, 10

Miller v. Johnson, 515 U.S. 900 (1995) .....................16

Shapiro v. McManus, No. 13-cv-03233, __ F.Supp. 3d __, 2016 WL 4445320 (D. Md.Aug. 24, 2016) ..........................................................11

Shaw v. Reno, 509 U.S. 630 (1993) .............................16

Vieth v. Jubelirer, 541 U.S. 267 (2004) ..............passim

Whitford v. Gill, No. 15-cv-421, __. F. Supp. 3d__, 2016 WL 6837229 (W.D. Wis. Nov. 21,2016) ......................................................... 1, 10, 18, 19

Whitford v. Nichol, No. 15-cv-421, .__ F. Supp.3d __., 2016 WL 1390040 (W.D. Wis. Apr.7, 2016) ...............................................................1-2, 10

Whitford v. Nichol, 151 F. Supp. 3d 918 (W.D.Wis. 2015) ............................................................2, 10

iii

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 2 .....................................................3

OTHER AUTHORITIES

11/08/2016 Unofficial General ElectionResults - Statewide, N.C. State Bd. ofElections, http://er.ncsbe.gov/?election_dt=l 1/08/2016&county_id=0&office=FE D&contest=0 ..............................................................20

Micah Altman, Districting Principles andDemocratic Representation (Mar. 31, 1998) ......22

Stephen Ansolabehere & Nathaniel Persily,Testing Shaw v. Reno: Do Majority-Minority Districts Cause ExpressiveHarms?, 90 N.Y.U.L. Rev. 1041 (2015) ..............24

Azavea Corp., Redrawing the Map onRedistricting (2012) .........................................19, 21

Daniel Christopher Bowen, DistrictCharacteristics and the RepresentationalRelationship (2010) ...............................................23

Complaint, Common Cause v. Rucho, No. 1:16-CV-01026 (M.D.N.C. Aug. 5, 2016), ECFNo. 1 .........................................................................11

Complaint, League of Women Voters of NorthCarolina v. Rucho, No. 1:16-CV-1164(M.D.N.C. Sept. 22, 2016), ECF No. 1 ...... 2, 20, 21

iv

Richard N. Engstrom, District Geography andVoters, in Redistricting in the NewMillennium (Peter F. Galderisi ed., 2005) .........23

Bernard Grofman, Criteria for Districting: ASocial Science Perspective, 33 UCLA L.Rev. 77 (1985) ...................................................22, 24

Samuel Issacharoff, Judging Politics: TheElusive Quest for Judicial Review ofPolitical Fairness, 71 Tex. L. Rev. 1643(1993) .......................................................................24

Richard H. Pildes & Richard G. Niemi,Expressive Harms, "Bizarre Districts,"and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno,92 Mich. L. Rev. 483 (1993) ...................................25

Daniel D. Polsby & Robert D. Popper, TheThird Criterion: Compactness as aProcedural Safeguard Against PartisanGerrymandering, 9 Yale L. & Pol’y Rev.301 (1991) .................................................................19

Press Release, Wisconsin Dep’t of Justice, AGSchimel Responds to Court’s Decision inWhitford v. Gill (Nov. 21, 2016),https://www.doj.state.wi.us/news-releases/ag-schimel-responds-court%E2%80%99s-decision-whitford-v-gill ........................................................................10-11

V

Ernest C. Reock, Measuring Compactness Asa Requirement of LegislativeApportionment, 5 Midwest J. Pol. Sci. 70(1961) .......................................................................19

Nicholas O. Stephanopoulos & Eric M.McGhee, Partisan Gerrymandering andthe Efficiency Gap, 82 U. Chi. L. Rev. 831(2015) .......................................................................21

US Congressional Maps, N.C. State Bd. ofElections, https://www.ncsbe.gov/webapps/redistrict/uscongmaps.html ................. 21

E~LANK PAGE

INTEREST OF AMICI CURIAE1

Amici curiae the Campaign Legal Center and theSouthern Coalition for Social Justice are non-profitorganizations dedicated to the protection and promotionof American democracy. The Campaign Legal Centerlitigates and pursues policy change in areas includingcampaign finance, government ethics, redistricting, andvoting rights. Likewise, the Southern Coalition forSocial Justice focuses on voting rights, criminal justice,human rights, and environmental justice, particularly asthey apply to communities in the South.

The Campaign Legal Center and the SouthernCoalition for Social Justice currently represent clientschallenging district plans in Wisconsin and NorthCarolina as unconstitutional partisan gerrymanders. SeeWhitford v. Gill, No. 15-cv-421, __ F. Supp. 3d __., 2016WL 6837229 (W.D. Wis. Nov. 21, 2016) (Whitford III)(invalidating Wisconsin’s state house plan as a partisangerrymander); Whitford v. Nichol, No. 15-cv-421, __ F.

1 Pursuant to Supreme Court Rule 37.2(a), counsel for amici

affirm that counsel of record for both parties received timelynotice of, and consented to, the filing of this brief. Consentfrom both parties is on file with the Clerk. Pursuant toSupreme Court Rule 37.6, counsel for amici affirm that nocounsel for any party authored this brief in whole or in part,and that no party, counsel for any party, or any other personother than amici and its counsel made a monetarycontribution intended to fund the preparation or submissionof this brief.

2

Supp. 3d __, 2016 WL 1390040 (W.D. Wis. Apr. 7, 2016)(Whitford II) (denying Wisconsin’s motion for summaryjudgment); Whitford v. Nichol, 151 F. Supp. 3d 918 (W.D.Wis. 2015) (Whitford I) (denying Wisconsin’s motion todismiss); Complaint, League of Women Voters of NorthCarolina v. Rucho, No. 1:16-CV-1164 (M.D.N.C. Sept.22, 2016), ECF No. 1 (LWVNC Complaint). Bothorganizations therefore take an interest in this appealbecause it implicates the issues of (1) whichconstitutional guarantee is violated by partisangerrymandering and (2) what standard should be used toadjudicate partisan gerrymandering claims. These areprecisely the issues at stake in the cases being litigatedby amici.

SUMMARY OF ARGUMENT

For three decades, this Court has recognized a causeof action for partisan gerrymandering under the EqualProtection Clause. See Davis v. Bandemer, 478 U.S. 109,143 (1986) (plurality opinion) ("[W]e hold that politicalgerrymandering cases are properly justiciable under theEqual Protection Clause."). In addition, Justice Kennedyhas suggested that partisan gerrymandering may bejusticiable under the First Amendment. See Vieth v.Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J.,concurring in the judgment) ("The First Amendmentmay be the more relevant constitutional provision infuture cases that allege unconstitutional partisangerrymandering.").

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Appellants, however, invoke neither the EqualProtection Clause nor the First Amendment in this case.Instead, their partisan gerrymandering claim proceedsunder U.S. Const. art. I, § 2, which states that membersof the House of Representatives shall be "chosen... bythe People of the several States," and the Due ProcessClause of the Fifth and Fourteenth Amendments. SeeParrott v. Lamone, 2016 WL 4445319, at "1 (D. Md. Aug.24, 2016); Jurisdictional Statement (J.S.) at 16-24, 31-32.According to Appellants, these provisions create "theright to reside in a district that has not beenmechanically manipulated to transfer the power to selectrepresentatives away from the people." Parrott, 2016WL 4445319, at *3.

While the district court held that this purportedright is unsupported by any "constitutional provision orcase," id. at *4, amici take no position here on whetherpartisan gerrymandering is best recognized under theEqual Protection Clause, the First Amendment, ArticleI, § 2, or the Due Process Clause. That is why arnici filethis brief in support of neither party. Arnici believe that,regardless of the doctrinal label that is affixed to thecause of action, the key issue for this Court is whether a"discernible and manageable standard" for partisangerrymandering cases can be identified, Vieth, 541 U.S.at 281 (plurality opinion), and if so, what exactly thatstandard is.

In amici’s view, this case does not present theappropriate vehicle to decide either the proper

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constitutional provision or the proper standard by whichto adjudicate partisan gerrymandering claims. This casearrives at this Court on an appeal of the three-judgecourt’s near-immediate dismissal of Appellants’ claim onthe ground that Appellants lacked standing. As a result,this case lacks any meaningful record: there is no trialtestimony, no expert analysis, and no discovery. Thereis also only minimal briefing and a short judicial opinionbelow. This record cannot possibly provide this Courtwith the necessary information to decide "the mostimportant, unsettled constitutional issue in the law ofredistricting." JoS. at 11. This Court should address thatunsettled issue in a case where the record will provide itwith the requisite evidence to hilly adjudicate thematter and grapple with the complex considerations thisquestion raises. There are such cases--including theWisconsin and North Carolina cases that amici arecurrently litigating--that will arrive at this Court inshort order and will provide the Court with a fullydeveloped trial record and extensive briefing. This is notthe right case for the Court to reach these issues.

Moreover, among the several theories that have beenposited by academics and practitioners in recent years,Appellants’ legal theory is particularly unlikely toprovide this Court with even an appropriate startingpoint to develop the proper constitutional standard forpartisan gerrymandering. Although the district courtdid not address it, Appellants proposed test for partisangerrymandering is simply that "districts that do not

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meet a minimum level of geographic compactness, asdetermined by well-known social science metrics," areunconstitutional. J.S. at 26. In other words, Appellantsassert that there exists a compactness floor forconstitutional purposes, below which districts may notfall. See also id. at 28 (explaining that Appellants’ test"would proscribe only extreme noncompactness, and itwould do so automatically").

While amici take no stance here on the constitutionalprovision under which partisan gerrymandering claimsshould be brought, they do wish to express seriousreservations with respect to Appellants’ suggested test.This compactness test has already been considered andrejected by many members of this Court, in part becauseit is both under- and over-inclusive and because it servesno meaningful role in promoting representational values.The Court should not use this case or Appellants’proposed test as the vehicle for reaching the importantissue of partisan gerrymandering.

Thus, amici urge this Court to either hold this casein abeyance until the Cou~t is able to address partisangerrymandering in a more suitable case, or use thisCourt’s summary procedures to resolve this matter.Should this Court choose to summarily affirm thedismissal below, amici respectfully request that theCourt make clear that the affirmance does not affect thisCourt’s holding in Vieth that partisan gerrymanderingclaims remain justiciable.

ARGUMENT

I. This Case Is Not The Right Vehicle To AddressThe Proper Test For Partisan GerrymanderingClaims Because It Lacks A Detailed Record.

Judicial involvement with partisan gerrymanderingclaims began nearly thirty years ago in Bandemer, inwhich this Court first held that partisangerrymandering presents a justiciablecase orcontroversy. 478 U.S. at 143 (pluralityopinion).Eighteen years later, the Court revisited the issue inVieth. While the Court in Vieth sharply divided on thejusticiability of partisan gerrymandering claims, theCourt was unanimous in agreeing that excessivepartisanship in redistricting is unconstitutional. The fourjustices in the plurality acknowledged that excessivepartisanship in redistricting offends the Constitution--and is therefore "unlawful"--and also that the"excessive injection of politics" into the redistrictingprocess is fundamentally "[incompatible] withdemocratic principles." 541 U.S. at 292-93 (pluralityopinion). In his concurrence, Justice Kennedy agreedthat "[a]llegations of unconstitutional bias inapportionment are most serious claims," explaining thatsevere partisan gerrymanders impose burdens "on therepresentational rights of voters and parties." Id. at 311-13 (Kennedy, J., concurring in the judgment). The fourdissenters likewise agreed that partisangerrymandering is unconstitutional. See id. at 317-18(Stevens, J., dissenting) ("The concept of equal justice

7

under law requires the State to govern impartially[, and]¯ . . partisan gerrymanders that are devoid of anyrational justification cannot be said to [be]impartial[]."); id. at 343 (Souter, J., dissenting)(explaining that "the guarantee of equal protectioncondemns [some forms of partisan gerrymandering] as adenial of substantial equality"); id. at 355 (Breyer, J.,dissenting) ("The use of purely political considerations indrawing district boundaries is not a ’necessary evil’ that... the Constitution inevitably must tolerate.").

The Court, however, was unable to agree on astandard by which partisan gerrymandering claimsshould be adjudicated. Appellants ask this Court toreach that question in this case. The Court shoulddecline the invitation. This case was decided on a motionto dismiss for lack of standing, and this appeal does notprovide the Court with the detailed evidentiary recordit needs to develop a discernible and manageablestandard for partisan gerrymandering. Not only is thereno full trial record, but the limited material that doesexist is uninformative. There was no written discoveryconducted nor any depositions taken. There are noexpert reports. There are no alternative maps showingother ways that Maryland’s congressional plan mighthave been drawn. There is no record evidence of themapmakers’ intent. Rather, the only document theCourt has before it is the twenty-page complaint, whichcontains minimal factual allegations. The briefing on the

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motion to dismiss was also cursory, as was the opinionbelow.

This lack of a detailed record--and particularlyexpert analysis--is especially problematic given howfact-intensive and data-driven partisan gerrymanderingclaims are and must be. In Vieth, Justice Kennedy notedboth the complexity of the evidence in these cases andthe likelihood that sophisticated data analysis will be akey component of any partisan gerrymanderingstandard. As Justice Kennedy stated: "Technology isboth a threat and a promise .... [T]hese new technologiesmay produce new methods of analysis that make moreevident the precise nature of the burdens gerrymandersimpose on the representational rights of voters andparties." 541 U.S. at 312-13 (Kennedy, J., concurring inthe judgment). Unfortunately, this case does not deliveron this potential. It does not cite any of the techniquesthat political scientists have recently devised formeasuring the representational burdens imposed bydistrict plans. Indeed, it does not really cite anything,meaning that it would not enable the Court to advancebeyond its existing partisan gerrymanderingjurisprudence.

In contrast, several cases are ongoing in the lowercourts that directly address Justice Kennedy’s interestin "new methods of analysis." Id. These cases also drawupon the interest many members of the Court haveexpressed in a gerrymandering standard based in part

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on partisan symmetry.2 For example, the Whitford suitinvolving the Wisconsin state house plan, and the

2 Partisan symmetry--the "require[ment] that the electoral

system treat similarly-situated parties equally"--was firstintroduced to the Court in League of United Latin AmericanCitizens v. Perry (LULAC), 548 U.S. 399,466 (2006) (Stevens,J., concurring in part and dissenting in part) (quoting AmicusBr. of Gary King, et al. 4-5). Also introduced was a particularmeasure of partisan symmetry called partisan bias, which"compar[es] how both parties would fare hypothetically ifthey each (in turn) had received a given percentage of thevote." Id. at 419 (opinion of Kennedy, J.) (quoting Amicus Br.of Gary King, et al. 5). At least five Justices expressedinterest in a gerrymandering standard based in part onpartisan symmetry. Justice Stevens commented that partisansymmetry is "widely accepted by scholars as providing ameasure of partisan fairness in electoral systems." Id. at 466(Stevens, J., concurring in part and dissenting in part). JusticeSouter (joined by Justice Ginsburg) noted the "utility of acriterion of symmetry as a test" and remarked that "[i]nterestin exploring this notion is evident." Id. at 483 (Souter, J.,concurring in part and dissenting in part). Justice Breyerobserved that severe partisan asymmetry serves "not only toexaggerate the favored party’s electoral majority but also toproduce a majority of congressional representatives even ifthe favored party receives only a minority of popular votes."Id. at 492 (Breyer, J., concurring in part and dissenting inpart). And Justice Kennedy did not "altogether discount[][partisan symmetry’s] utility in redistricting planning andlitigation," while pointing out that "asymmetry alone" is not

10

LWVNC suit involving the North Carolinacongressional plan, present extensive evidence of severeand durable partisan asymmetry, using a measure ofpartisan bias as well as a new metric called the"efficiency gap," which addresses the concerns thatJustice Kennedy voiced about partisan bias in hisopinion in League of United Latin American Citizens v.Perry (LULAC), 548 U.S. 399, 419-20 (2006) (opinion ofKennedy, J.). Both suits also invoke the FirstAmendment as a basis for relief, as urged by JusticeKennedy in his opinion in Vieth. See 541 U.S. at 314-16(Kennedy, J., concurring in the judgment).

The Whitford suit in Wisconsin survived the State’smotion to dismiss, see Whitford I, 151 F. Supp. 3d at 920,and the State’s motion for summary judgment, seeWhitford II, 2016 WL 1390040, at "1. After a four-daytrial, the district court held in November 2016 that theWisconsin state house plan is an unconstitutionalpartisan gerrymander. See Whitford III, 2016 WL6837229, at "1. The case’s remedial phase is currentlyongoing, and the State has announced its intention toappeal the three-judge court’s ruling to this Court assoon as possible.~ The LWVNC suit was filed in

enough to invalidate a district plan. Id. at 420 (opinion ofKennedy, J.).3 See Press Release, Wisconsin Dep’t of Justice, AG SchimelResponds to Court’s Decision in Whitford v. Gill (Nov. 21,

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September 2016, see LWVNC Complaint, and is now atthe motion-to-dismiss phase.

In addition to Whitford and LWVNC, partisangerrymandering challenges have been brought againstMaryland’s and North Carolina’s congressional plansbased primarily on a First Amendment theory. TheMaryland suit survived the State’s motion to dismiss inAugust 2016, see Shapiro v. McManus, No. 1:13-cv-03233,_ F. Supp. 3d __, 2016 WL 4445320, at "1 (D.Md. Aug. 24, 2016), and is now at the summary judgmentphase. The North Carolina suit was filed in August 2016,see Complaint, Common Cause v. Rucho, No. 1:16-CV-01026 (M.D.N.C. Aug. 5, 2016), ECF No. 1 (CommonCause Complaint), and is now at the motion-to-dismissphase.

In amici’s view, any of these cases would present abetter vehicle to address the challenge Appellantsdescribe as the "single most important piece ofunfinished judicial business in the law of redistricting"--"[f]inding a judicially manageable standard that wouldallow the Court to address the problem of excessivepartisan gerrymandering." J.S. at 15. Many of thesecases will be ready for the Court’s consideration in thenear future--Whitford in particular, which will beappealed imminently by the State. Accordingly, amiciurge the Court to use its summary procedures to dispose

2016), https://www.doj.state.wi.us/news-releases/ag-schimel-responds-court%E2%80%99s-decision-whitford-v-gill.

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of this case, or hold the case in abeyance until a moresuitable vehicle for resolving these issues reaches theCourt.

II. This Case Is Not The Right Vehicle To AddressThe Proper Test For Partisan GerrymanderingClaims Because Appellants’ Proposed Test IsDeeply Flawed.

The Court also should summarily dispose of this casebecause the compactness test that Appellants proposefor adjudicating partisan gerrymandering claims isdeeply flawed. In essence, this Court has alreadyrejected a compactness-based standard, and with goodreason. Relying on compactness alone to combatpartisan gerrymandering would be both over- andunder-inclusive, and compactness for the sake ofcompactness serves no real value for the electoralsystem.

First, Appellants’ suggested test has been harshlycriticized--and arguably rejected outright--by theCourt’s earlier partisan gerrymandering decisions. InBandemer, Justice Powell argued for the propositionthat "the shapes of voting districts" should be the "mostimportant" factor in the constitutional inquiry. 478 U.S.at 173 (Powell, J., concurring in part and dissenting inpart). He added that, "[i]n some cases, proof of grotesquedistrict shapes may, without more, provide convincingproof of unconstitutional gerrymandering." Id. at 173

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n.12; see also id. at 176 (noting how Indiana’s"redistricting dissects counties into strange shapes").

The Bandemer plurality (implicitly joined by ChiefJustice Burger and Justice O’Connor) rejected JusticePowell’s approach. In their view, the approach’s fatalflaw was that, while district non-compactness may beprobative of discriminatory intent, it sheds no light ondiscriminatory effect. Discriminatory effect, however, isa necessary element of a constitutional violation. As theplurality put it, strange district shapes "do notcontribute to a ~inding that Democratic voters have beendisadvantaged in fact. They support a finding that anintention to discriminate was present.., but they do notshow any actual disadvantage beyond that shown by theelection results: It surely cannot be an actualdisadvantage.., just to be placed in a district.., thatdeparts from pre-existing political boundaries." Id. at140-41 (plurality opinion); see atso id. at 138-39 ("Wedisagree, however, with [Justice Powell’s] conception ofa constitutional violation.").

Very similar points and counterpoints were made inVieth. Justice Souter argued for a ~ve-part test whosecenterpiece was whether a district "paid little or no heedto those traditional districting principles whosedisregard can be shown straightforwardly." 541 U.S. at348 (Souter, J., dissenting). He stressed that"compactness in particular is relevant to demonstratingpossible majority-minority districts under the VotingRights Act," and "can be measured quantitatively in

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terms of dispersion, perimeter, and population ratios."Id. Separately, Justice Stevens recommended strikingdown districts whose predominant purpose was partisanadvantage. Odd shape, in his view, was the mostcompelling evidence of predominant partisan intent. See,e.g., id. at 321 (Stevens, J., dissenting) ("[A]n ’uncouth’or bizarre shape can easily identify a district designedfor a single-minded, nonneutral purpose."); id. at 335("[I]rrational shape can serve as an objective indicator ofan impermissible legislative purpose .... ").

The Vieth plurality-explicitly joined by JusticeKennedy, see id. at 308 (Kennedy, J., concurring in thejudgment)--was unconvinced. One problem with JusticeSouter’s and Justice Stevens’s emphases oncompactness was that districts can easily be bothcompact and highly skewed in one party’s favor. See id.at 290 (plurality opinion) (observing that "a legislaturethat draws district lines with no objectives in mindexcept compactness" might nevertheless cause "politicalgroups that tend to cluster" to be "systematicallyaffected by what might be called a ’natural’ packingeffect"); id. at 308-09 (Kennedy, J., concurring in thejudgment) (noting that "compactness" "cannot promisepolitical neutrality" and "would unavoidably havesignificant political effect"). Another issue was thatexcessively non-compact districts cannot bedistinguished straightforwardly from districts justbelow the constitutional threshold. See id. at 296(plurality opinion) ("How much disregard of traditional

15

districting principles?"). And still another difficulty wasthat (as pointed out in Bandemer) non-compactness hasno necessary link to the extent of a party’s electoraldisadvantage under a plan. See id. at 297 ("[N]o elementof [Justice Souter’s] test looks to the effect of thegerrymander on the electoral success, the electoralopportunity, or even the political influence, of theplaintiffs group."). For all of these reasons, a majority ofthe Vieth Court turned down both of the compactness-based tests that were presented to it. Yet in this case,Appellants have simply repackaged the same flawedcompactness-based test under a different constitutionallabel.

Second, even if Appellants’ suggested test isdoctrinally available, it is normatively unattractivebecause it would produce a large number of falsepositives--cases where districts would be deemedunconstitutional despite not being the product ofpartisan gerrymandering. This inaccuracy would arisebecause districts can be highly non-compact for manyreasons other than the manipulation of district lines forpartisan advantage. Sometimes States’ boundaries arebizarre (think of Maryland’s Chesapeake Bay orWashington’s Puget Sound), causing districts in thevicinity to look strange as well. Sometimes communitiesof interest follow no discernible pattern, meaning thatdistricts corresponding to the communities follow noneeither. Sometimes odd district shapes are necessitatedby jurisdictions’ efforts to comply with the Voting

16

Rights Act. And so on. Appellants’ suggested testconsiders none of these possibilities, but rather wouldindiscriminately nullify highly non-compact districtsregardless of why they appear outlandish.

That partisan gain is not the only explanation forbizarrely shaped districts is abundantly clear from theCourt’s racial gerrymandering cases. In these cases, theCourt has repeatedly recognized that contorted districtlines are probative evidence that racemnot party--primarily drove the districts’ creation. See, e.g., Shaw v.Reno, 509 U.S. 630, 646-47, 649 (1993) (describing adistrict with a shape "so highly irregular" that it "cannotbe understood as anything other than an effort toseparate voters into different districts on the basis ofrace"); Bush v. Vera, 517 U.S. 952, 965, 973 (1996)(plurality opinion) (discussing one district "consist[ing]of narrow and bizarrely shaped tentacles" and two otherdistricts that "interlock ’like a jigsaw puzzle"’); Miller v.Johnson, 515 U.S. 900, 913 (1995) (explaining that"[s]hape... may be persuasive circumstantial evidencethat race for its own sake . . . was the legislature’sdominant and controlling rationale in drawing its districtlines").

Race, however, is not the only other explanation fordistricts’ strange shapes. Take States’ boundaries. Someof them are straight lines that lend themselves nicely tohighly compact districts. But some of them areextraordinarily intricate, typically because they areformed by bodies of water whose contours reflect

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natural forces rather than traditional districtingprinciples. Any districts that border these bodies ofwater will necessarily look bizarre too, but not becauseof partisan, racial, or any other kind of gerrymandering.4The same logic holds for political subdivisions andcommunities of interest: Sometimes they are oddlyshaped, in which case districts that are congruent withthem will be oddly shaped as well.5 The broader point isthat extreme non-compactness is nothing more than asignal that something prevented a less bizarre-lookingdistrict from being drawn. At times, this something maybe a desire to achieve partisan advantage. But in manyother cases, the reason is completely different--andcompletely innocuous. Appellants’ suggested test is thusfatally over-inclusive because it would label as partisangerrymanders a large number of districts that cannotpossibly be characterized in this way.

Third, the test would also produce an intolerablenumber of false negatives--cases where districts (anddistrict plans) would be upheld despite resulting fromegregious redistricting abuses. Two centuries ago, in the

4 For instance, Washington’s Second Congressional District isamong the most non-compact in the country according toAppellants’ preferred measure of compactness. But this isentirely because the district includes Puget Sound.5 For example, Ohio’s Ninth Congressional District is themost non-compact in the country according to onecompactness measure. But the district encompasses theindustrial and union-heavy coastline of Lake Erie.

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era of the original gerrymander, mapmakers may havehad to form bizarre districts in order to achieve partisanadvantage. Today, though, advances in redistrictingsoftware and in the prediction of voting behavior haverendered obsolete the traditional equation ofgerrymandering with strange district shapes. Moderngerrymanders often look reasonable (or at least not toounreasonable) to the naked eye. To discern the ways inwhich they benefit one party, and hamstring itsopponent, statistical analysis of electoral data isnecessary--not a mere perusal of a map. See Vieth, 541U.S. at 308-09 (Kennedy, J., concurring in the judgment)(noting that "compactness" is not "sound as [an]independent judicial standard[]" because it "cannotpromise political neutrality").

To illustrate the point, consider the Wisconsin statehouse plan that amici’s clients have challenged in theWhitford litigation. After a four-day trial, the districtcourt found that the plan’s authors aimed "to secureRepublican control of the Assembly under any likelyfuture electoral scenario for the remainder of the decade,in other words to entrench the Republican Party inpower." Whitford III, 2016 WL 6837229, at *44. Thecourt also concluded that "the drafters got what theyintended to get." Id. at *46. That is, their plan exhibitedstaggering levels of partisan asymmetry in the 2012 and2014 elections--among the highest in modern Americanhistory--and this asymmetry will almost certainlyendure for the rest of the decade if the plan is allowed to

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stand. See id. at "46-56. The court ruled as well that theplan’s asymmetry "cannot be justii~ed by the legitimatestate concerns and neutral factors that traditionally bearon the reapportionment process." Id. at *57.

Despite these showings of deliberate, severe,durable, and unjustifiable gerrymandering, theWisconsin state house plan would be perfectly validunder Appellants’ approach. For all of the plan’s otherflaws, its districts are fairly compact. They have anaverage Polsby-Popper score of 0.28 and an averageReock score of 0.39~---figures comparable to Wisconsin’sprevious court-drawn plan, see id. at *78 (Griesbach, J.,dissenting), and squarely in the middle of thedistribution of congressional plans’ compactness. Theplan’s districts thus are not the "grossly noncompact"constituencies that Appellants would proscribe, J.S. at

~ See AZAVEA CORP., Redrawing the Map on Redistricting 8(2012) (Azavea Report), https://cdn.azavea.com/com.redistrictingthenatiorgpdfs/Redistricting_The_Nation_Addendum.pdf. Polsby-Popper compactness is the area of the districtdivided by the area of a circle whose circumference is equal tothe district’s perimeter. See Daniel D. Polsby & Robert D.Popper, The Third Criterion: Compactness as a ProceduralSafeguard Against Partisan Gerrymandering, 9 Yale L. &Pol’y Rev. 301 (1991). Reock compactness is the area of thedistrict divided by the area of the smallest circle thatcompletely encloses the district. See Ernest C. Reock, Jr.,Measuring Compactness As a Requirement of LegislativeApportionment, 5 Midwest J. Pol. Sci. 70 (1961).

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25, even though the plan’s intent and effect are grosslypartisan.

Similarly, take the North Carolina congressional planthat amici’s clients have challenged in the LWVNClitigation. The plan’s authors openly bragged about theirpartisan motivation; one of them stated, "I acknowledgefreely that this would be a political gerrymander," and"I propose that we draw the maps to give a partisanadvantage to 10 Republicans and 3 Democrats because Ido not believe it’s possible to draw a map with 11Republicans and 2 Democrats." LWVNC Complaint ¶45. Sure enough, after the plan went into effect in 2016,ten Republicans and three Democrats were elected,even though the statewide U.S. House vote was splitalmost evenly.7 Moreover, ten Republicans and threeDemocrats will continue to be elected under almost anyfuture scenario. See LWVNC Complaint ¶ 69. And thetypical randomly drawn plan, devised without anyconsideration of election results, would treat the partiesalmost perfectly symmetrically. See id. ¶ 72.

Yet, the North Carolina congressional plan would beentirely unobjectionable under Appellants’ suggestedtest. This is because the plan’s districts are quitecompact--certainly less oddly shaped than theirpredecessors that were in effect in 2012 and 2014, and

See 11/08/2016 Unofficial General Election Results -Statewide, N.C. State Bd. of Elections, http://er.ncsbe.gov/?elction_dt= 11/08/2016&county_id=0&office=FED&contest=0.

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that were then invalidated on racial gerrymanderinggrounds. See Harris v. McCrory, 159 F. Supp. 3d 600(M.D.N.C. 2016), probable jurisdiction noted, 136 S. Ct.2512 (2016)2 Notably, the current plan achieves exactlythe same ten-to-three advantage for Republicans as theplan it replaced, see LWVNC Complaint ¶¶ 61-63, eventhough its districts are substantially more aestheticallypleasing. This is powerful (if circumstantial) evidencethat aesthetically pleasing districts are now compatiblewith the most extreme partisan gerrymandering.9

There are numerous other examples beyondWhitford and LWVNC. Many maps like the Wisconsinstate house plan and the North Carolina congressionalplan--maps whose districts are compact enough, butwhose motivations and consequences are highlypartisan--would be upheld under Appellants’ proposedtest. These, though, are precisely the egregious

8 See also U.S. Congressional Maps, N.C. State Bd. ofElections (2016), https://www.ncsbe.gov/webapps/redistrict/uscongmaps.html (displaying these plans’ districts).

~ Indeed, empirical analysis demonstrates that district shapeis not a statistically significant predictor of whether a planreflects partisan symmetry. Compare Nicholas O.Stephanopoulos & Eric M. McGhee, PartisanGerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev.831 (2015) (calculating" efficiency gap scores for congressionaldistricts), with Azavea Report (calculating compactnessscores for congressional districts).

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gerrymanders that should be condemned by anynormatively attractive standard.

Finally, Appellants’ suggested test would notadvance any representational values. Political scientistshave recently studied how district compactness isrelated to voter turnout, voter attitudes towardgovernment, and legislator behavior. Almost all of theseanalyses have produced null results, meaning thatcompactness does not materially improve (or worsen)any other aspect of our electoral system. As oneprominent political scientist has concluded, "I do notbelieve there is anything desirable per se about districtsthat look like squares or circles." Bernard Grofman,Criteria for Districting: A Social Science Perspective, 33UCLA L. Rev. 77, 89-90 (1985).

The best-known work in this literature was carriedout by Micah Altman. He measured the compactness ofcongressional districts from 1962 to 1994. See MicahAltman, Districting Principles and DemocraticRepresentation 323 (Mar. 31, 1998). He then examinedwhether district compactness had a statisticallysignificant impact on the extremism of representatives’voting records, on voters’ belief that Congress isresponsive to their interests, on voters’ trust ingovernment, and on voter turnout. The answer was nowith respect to every variable except turnout, see id. at324-34, and even as to turnout, "[t]he effects ofcompactness" were "dwarfed by demographic factors,"id. at 334. In a subsequent study, Richard Engstrom also

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analyzed the link between congressional districtcompactness and voter turnout, for districts in effectfrom 1994 to 1998. See Richard N. Engstrom, DistrictGeography and Voters, in Redistricting in the NewMillennium 65 (Peter F. Galderisi ed., 2005). Enstromdetected no relationship at all. See id. at 73-74."Compactness, the geographic characteristic that has soconcerned scholars and political commentators, does notseem to discourage citizens from participating in thepolitical process." Id. at 74.

In another contribution to this genre, Daniel Bowencalculated the compactness of congressional and statelegislative districts in 2008. See Daniel ChristopherBowen, District Characteristics and theRepresentational Relationship 137-39, 168-70 (July2010). He then investigated whether districtcompactness was statistically signii~cantly linked tovoters’ trust in government, approval of their ownrepresentatives, approval of the legislature as a whole,or ideological distance from their representatives. It wasnot, at either the state legislative or congressional level,see id. at 149-50, 198, 200, leading Bowen to concludethat, "[d]espite the widespread attention given togeographical compactness, I find no significantrelationship between compactness and any of thedependent variables," id. at 144.

Lastly, Stephen Ansolabehere and Nathaniel Persilymeasured the compactness of congressional districts in2012, and then analyzed whether there were differences

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in voters’ racial attitudes between compact andnoncompact majority-minority districts. See StephenAnsolabehere & Nathaniel Persily, Testing Shaw v.Reno: Do Majority-Minority Districts CauseExpressive Harms?, 90 N.Y.U.L. Rev. 1041, 1049-54(2015). There were not; black, Latino, and white voters’racial resentment and approval of their representativesdid not appreciably vary based on whether these votershappened to live in compact or non-compact majority-minority districts. See id. at 1055-62. In Ansolabehereand Persily’s words, "the shape of one’s district" doesnot influence "the race-based worldviews of districtresidents in any systematic way." Id. at 1065.

The implication of these studies is that Appellants’suggested test would have precisely one consequence:making districts somewhat more aesthetically pleasing.Due to the test’s over-inclusiveness and under-inclusiveness, it would not be effective in fightingpartisan gerrymandering. And due to the lack of aconnection between district compactness and otherrepresentational values, the test would not achieve anyother democratic goal either. That is why most scholarswho have considered proposals similar to Appellants’have rejected them. See, e.g., Grofman, supra, at 89-90(doubting that "there is anything desirable per se aboutdistricts that look like squares or circles"); SamuelIssacharoff, Judging Politics: The Elusive Quest forJudicial Review of Political Fairness, 71 Tex. L. Rev.1643, 1693 (1993) (noting "the absence of an independent

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normative foundation for a compactness requirement");Richard H. Pildes & Richard G. Niemi, ExpressiveHarms, "Bizarre Districts," and Voting Rights:Evaluating Election-District Appearances After Shawv. Reno, 92 Mich. L. Rev. 483,484 (1993) (explaining that,while "most people.., recoil instinctively from willfullymisshapen districts," "this impulse reflects untutoredintuition, an instinctive response that careful analysisreveals to be unwarranted").

CONCLUSION

Because amici take no position here on theconstitutional provision under which partisangerrymandering claims should be brought, they file thisbrief in support of neither party. Amici neverthelessurge the Court to summarily dispose of this case anddecline Appellants’ request to use this case as a vehicleto decide the proper standard for partisangerrymandering claims. Should the Court summarilyaffirm the result below, amici respectfully request thatthe Court make clear that partisan gerrymanderingclaims remain justiciable under this Court’s bindprecedent.

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Respectfully submitted,

JESSICA RING AMUNSON

MARINA K. JENKINS

JENNER & BLOCK LLP

1099 New York Ave., NWSuite 900Washington, DC 20001(202) 639-6000

December 8, 2016

NICHOLAS O. STEPHANOPOULOS

Counsel of RecordUNIVERSITY OF CHICAGO

LAW SCHOOL

1111 E. 60th St., Office 510Chicago, IL 60637(773) 702-4226nsteph@uchicago.edu

Counsel for Amici